These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
burdens of proof
The First Circuit has determined that in a 236(a) bond hearing, the Department of Homeland Security bears the burden of proving the detainee is a danger to the community and a flight risk. With respect to danger, the burden is clear and convincing evidence. For flight risk, the burden is preponderance of the evidence. The court determined that this burden allocation is required by the Due Process Clause of the Fifth Amendment.
The full text of Hernandez-Lara v. Lyons can be found here:
The Supreme Court has determined that an applicant for relief cannot meet her burden of proof with an inconclusive record of conviction. Notably, this analysis of burdens only applies when the statute is divisible, and the procedural posture of the case involves an application for relief.
The full text of Pereida v. Wilkinson can be found here:
The Ninth Circuit, sitting en banc,, has determined that an inconclusive record of conviction meets a petitioner’s burden for demonstrating eligibility for relief. The court determined that this outcome is mandated by the Supreme Court’s decision in Moncrieffe v. Holder.
The court left open the question as to who bears the burden of production of all documents in the record of conviction. “To the extent that there may be a predicate factual question, it would be whether all relevant and available documents have been produced. But this question implicates a possible burden of production, which we need not and do not address here, not the burden of proof. Once all relevant and available Shepard documents have been produced, nothing remains inconclusive—the documents either show that the petitioner was convicted of a disqualifying offense under the categorical approach, or they do not. What the documents show is thus a purely legal question, to which the burden of proof is irrelevant.” The court remanded the case to the Board of Immigration Appeals to decide the burden of production issue in the first instance.
The full text of Marinelarena v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/18/14-72003.pdf
The Eighth Circuit has determined that the Nebraska statute defining criminal impersonation is divisible as compared to the generic definition of a crime involving moral turpitude. However, because the record of conviction was inconclusive as to which subdivision the petitioner was convicted under, he could not meet his burden of establishing eligibility for cancellation of removal for non-lawful permanent residents.
The full text of Pereida v. Barr can be found here:
The Sixth Circuit has determined that an inconclusive record of conviction does not meet a petitioner's burden of establishing eligibility for relief. This decision creates a circuit split with the First Circuit, but aligns with a decision from the Fifth Circuit. The issue is currently being heard en banc by the Ninth Circuit.
The full text of Gutierrez v. Sessions can be found here:
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0073p-06.pdf
The Ninth Circuit has granted the petition for en banc rehearing in Marinelarena v. Sessions, a decision that addresses whether an inconclusive record of conviction can meet a petitioner's burden of proving eligibility for immigration relief.
The order granting the motion for en banc rehearing can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/29/14-72003.pdf
The Seventh Circuit has once again clarified the standard of proof for protection under the Convention Against Torture. It again that it had previously held that standard does not call for a literal calculation of a greater than 50% chance of harm, but rather, a qualitative assessment that here is a substantial risk of harm to the petitioner. "Does the risk exceed 50%? What if there is a 20% risk of death and a 40% risk of bodily injury? Is that 'more likely than not' when neither risk exceeds 50%? Does a 20% risk of death exceed a 60% risk of losing a limb? Similar questions are easy to spin out. The panel in Rodriguez-Molinero stated that a statistical requirement cannot be taken seriously and that the best an agency or court can do is look for substantial risk. 'More likely than not' is the standard burden in civil litigation and does not impose a statistical or quantitative requirement in a tort or contract suit any more than in a removal proceeding. Our opinion in Rodriguez-Molinero did not suggest that 'substantial risk' means something more than the 'more likely than not' standard. It was designed, rather, as a non-quantitative restatement of that standard. If there is any gap between the two, it is in the direction of lenience to aliens, potentially treating (say) a moderate risk of death as equivalent to a much greater risk of being beaten up, and treating either as enough to allow the agency to permit an alien to stay in this nation."
The full text of Perez-Montes v. Sessions can be found here:
The Tenth Circuit has determined that theft under the Westminster, Colorado municipal code is overbroad and divisible as compared to the generic definition of a crime involving moral turpitude (CIMT) because it contains four separate crimes, and one subsection does not require the defendant to intend to permanently deprive the owner of the benefits of ownership. Notably, the Court recognized that the Board of Immigration Appeals has recently updated its definition of theft-related CIMTs, but noted that this updated definition would only apply prospectively to cases initiated after the issuance of the new definition.
The court then determined that the record of conviction was inconclusive as to which subsection of the theft statute the petitioner was convicted of violating. However, since he was seeking cancellation of removal, the burden was on him to prove that he had not been convicted of a CIMT, and he could not meet this burden with an inconclusive record. In so finding, the court joined the Ninth Circuit's recent split from the First Circuit on this issue.
The full text of Lucio-Rayos v. Sessions can be found here:
https://www.ca10.uscourts.gov/opinions/15/15-9584.pdf
The Ninth Circuit has determined that California's conspiracy statute (penal code section 182(a)(1)) is broader than the generic definition of a controlled substance violation because it criminalizes conspiracy to commit any crime, including ones unrelated to controlled substances. However, because California law requires jurors to agree unanimously on the object of the conspiracy, the statute is divisible. As such, the Court proceeded to the modified categorical approach, and determined that the petitioner was convicted of conspiracy to transport a controlled substance (health & safety code section 11352). This section itself is also divisible, with respect to the identity of the controlled substance. Because the criminal complaint only identified the controlled substance in the list of overt acts, the Court concluded that it was inconclusive as to whether the petitioner's conviction necessarily rested upon a controlled substance in the federal drug schedules. The Court further concluded that the petitioner could not demonstrate her eligibility for relief based on this inconclusive record of conviction, as she bore the burden of proving that she was not convicted of a controlled substance offense. The Court found that this conclusion was not inconsistent with the Supreme Court's decision in Moncrieffe v. Holder because Moncrieffe addressed the government's burden to prove the deportability of a lawful permanent resident, not a non-citizen's burden to prove eligibility for relief from removal.
This decision now deepens a circuit split with the First Circuit with respect to inconclusive records of conviction. One judge on the Ninth Circuit panel dissented with respect to the conclusion regarding the burden of proof and an inconclusive record of conviction.
Given the multiple past cases from the Ninth Circuit on this issue (with different outcomes each time), I expect this will not be the last we hear of inconclusive records from the court.
The full text of Marinelarena v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/23/14-72003.pdf
The Ninth Circuit has determined that Idaho's petit theft statute is overbroad as compared to the definition of a crime involving moral turpitude because it criminalizes temporary takings of property.
The court also noted that the effect of an inconclusive record is unclear because it remains an open question whether the burden allocations in Young v. Holder survived the Supreme Court's decision in Moncrieffe v. Holder. However, the panel declined to reach that question because another panel has priority to do so.
The court also directed the BIA to reconsider its decision in Matter of Cortez, in which the BIA found that the unambiguous text of the cancellation statute disqualified any person from seeking cancellation who had been convicted of a crime involving moral turpitude for which a sentence of at least one year could be imposed, regardless of whether the conviction took place more than five years after the person's admission to the United States. The court found the statute is not unambiguous, and thus, directed the BIA to examine its analysis using its discretion to interpret the statute in a reasonable manner.
The full text of Lozano-Arredondo v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/11-72422.pdf
The Department of Homeland Security presented expert testimony that the respondent served in a special police force during the Bosnian War, in an area of the country where large-scale genocide took place. The applicant sought a fraud waiver under 237(a)(1)(H) and asylum-related relief. The Board of Immigration Appeals held that given the expert testimony, the applicant had the burden of proving that the ineligibility bars for participating in extrajudicial killings and genocide did not apply.
The full text of Matter of M-B-C- can be found here:
Cruz-Chang was convicted of a drug offense. The government argued that the conviction was an aggravated felony, but the Immigration Judge disagreed, and granted Cruz-Chang cancellation of removal. The government appealed, and while on appeal. requested remand based on a transcript from the criminal proceedings that it alleged showed Cruz-Chang was convicted of an aggravated felony. The Board of Immigration Appeals (BIA) granted remand, and on remand, the court reversed, and denied cancellation on the basis of an aggravated felony conviction. Cruz-Chang appealed, and the BIA affirmed. Cruz-Chang appealed to the Third Circuit, who remanded at the Government's request, to determine what impact that the Supreme Court's decision in Descamps. On remand, the Government argued that Descamps had no impact on the case, and the BIA affirmed. Cruz-Chang again appealed to the Third Circuit.
The court first determined that the statute of conviction - which criminalized distribution and dispensing a controlled substance - necessarily involved a trafficking element, because it was not clear if distribution and dispensing were alternative means or alternative elements of the offense. Given this ambiguity, the Court concluded that the certainty required by the Supreme Court's recent conviction in Mathis was not present with respect to the issue of the aggravated felony. As such, Cruz-Chang is eligible for cancellation of removal.
The court also scolded the Government for what it perceived as its waste of judicial resources. "In closing, we note our expectation that on remand and in future cases the Government will refrain from engaging in the problematic conduct that has marked its performance here. The last time this case was before us, the Justice Department requested and we granted a remand to the BIA for the limited purpose of the BIA considering what effect, if any, Descamps has on this immigration case. Once back before the BIA, however, the Government asserted that Descamps was inapplicable and instead proceeded to argue that the plea transcript was relevant to whether Chang-Cruz should receive discretionary relief, along with an inadequate explanation for why it failed to obtain that plea transcript before the IJ rendered her initial decision cancelling Chang-Cruz’s removal. These were issues well outside the scope of our remand. Most troubling, however, is the Government’s resort before the BIA to a frivolous argument that Chang-Cruz engaged in 'obstructionism' by opposing the Government’s remand to the IJ to consider the plea transcript. It comports with neither the professionalism nor the ethical mandates of Government counsel to chill vigorous advocacy by asserting that an alien who avails himself of the congressionally prescribed opportunity to seek cancellation of removal thereby loses the privilege of cancellation. We trust that this was an unfortunate mistake that will not be repeated."
The full text of Cruz-Chang v. Attorney General can be found here:
In a published decision litigated by a pro se litigant (no lawyer!), the Seventh Circuit overturned an Immigration Judge's decision, finding that he overlooked key evidence that the petitioner would be harmed in El Salvador. "For example, there is no sign that the judge considered an affidavit from Arrazabal’s mother-in-law, with whom he had lived in El Salvador. Her testimony corroborated Arrazabal’s account of his arrest and beating by the Salvadoran police on account of his perceived gang affiliation, and his statement that MS- 13 members threatened to murder him and his family because of his refusal to participate in the gang. The affidavit had been read into the record by Arrazabal’s translator during the hearing. At the time the immigration judge said that he would consider its contents, but he never referred to it in his decision. This was not a harmless oversight: it led the immigration judge to state, erroneously, that Arrazabal’s “claims that he was beaten by the police are not corroborated.” The mother-in-law’s affidavit may not have been as specific as one would wish, but it did provide at least some corroboration for the withholding and CAT claims. The immigration judge also overlooked a letter from Arrazabal’s uncle expressing concern that Arrazabal would be murdered by gang members if returned to El Salvador. We express no view about the accuracy of these documents. The problem is that the immigration judge’s decision says nothing about them, nor does it grapple with the views of Arrazabal’s relatives about the life-threatening danger they believed he would face upon return."
The Court also criticized the Immigration Judge's disregard of Arrazabal's assertion that there was no way he could leave the gang. "For this important finding, the judge relied exclusively on a feature article that appeared on a news website. The article touted the success of one pilot program in San Salvador that helps former gang members find jobs. But the immigration judge read too much into the article. Its description of one company’s decision to hire 30 former gang members does not establish that throughout El Salvador (a country of more than 6 million people), all 'those who truly want to leave the gang and who are willing to actually try to leave the gang' (as the immigration judge put it) can do so."
Additionally, the Court was dissatisfied with the Judge's determination that Arrazabal had not truly renounced his gang membership. "Nevertheless, he said that Arrazabal’s failure to take outward steps to renounce gang membership (meaning, perhaps, his failure to undergo the painful and expensive process of tattoo removal) automatically meant that he was an active rather than a former gang member and thus not a member of the latter social group. He may want to leave the gang, the immigration judge said, but '[g]ang members who have subjectively decided to leave are not socially distinct because only they know individually their own thoughts.' But the record shows that Arrazabal was not asking anyone to read his mind, and so the immigration judge was wrong to suggest that renunciation of membership required Arrazabal to take more visible steps to distance himself from the gang. Arrazabal testified that he did take objectively ascertainable steps: he repeatedly rebuffed the efforts of MS-13 members to recruit him to commit crimes and regularly paid extortion money to avoid harm. If we accept that testimony as true (as the immigration judge implicitly did in this portion of his analysis), there is little more Arrazabal could have done to distance himself from the gang without putting himself at even more risk of reprisal."
Finally, the Court reaffirmed its prior reluctance to read the "more likely than not" standard too literally. "But that oft-repeated phrase must be understood pragmatically in the immigration context, because there is no reliable data to show just how great an applicant’s risk of torture is. All that can be said responsibly on the basis of actually obtainable information is that there is, or is not, a substantial risk that a given alien will be tortured if removed from the United States.
The full text of Arrazabal v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D05-04/C:15-2413:J:Wood:aut:T:fnOp:N:1747578:S:0
In a published decision, the First Circuit has determined that an inconclusive record of conviction meets an applicant's burden to prove eligibility for cancellation of removal. In so doing, the Court recognized that whether an offense poses a statutory bar is a legal question, not a factual one. The Court relied heavily on the Supreme Court's decision in Moncrieffe v. Holder.
The full text of Peralta Sauceda v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2042P2-01A.pdf
In a follow up decision to last month's opinion in Rodriguez-Molinero v. Lynch, Judge Posner has again eviscerated the evidentiary requirement that an applicant prove a greater than 50% chance of harm. Though Rodriguez-Molinero arose in the context of a Convention Against Torture application, and this decision arose in the context of a withholding of removal application, the Court reiterated its belief that the "more likely than not" standard cannot be literally interpreted to require a greater than 50% chance of harm.
"Against all this it can be argued that while the evidence indicates danger to Gutierrez-Rostran if he is returned to Nicaragua, it does not indicate that he is “more likely than not” to be persecuted if he is sent there, which the Supreme Court in INS v. Stevic held is the standard of proof for withholding of removal. That of course is the normal civil standard of proof. But it can’t be taken literally in the immigration context. In an ordinary civil case there are witnesses, lay and/or expert, on both sides of the case, and likewise documentary evidence. But in the usual withholding-of-removal case, including this case, the only evidence is presented by the alien—and the immigration judge appears to have deemed that evidence credible.
What is missing in a case like this are data that would enable a rational determination of whether there was a greater than 50 percent probability that the alien would lose his life or his freedom if removed to his country of origin. The first step in such an inquiry would be to define the endangered group (obviously not all the Nicaraguans who voted for PLC or PLI candidates) and the second to determine what percentage of them have lost their life or freedom at the hands of the Sandinistas, and also whether that percentage is growing or declining (or not changing). The immigrant is required to present evidence that he faces a significant probability of persecution if he is removed to his country of origin, and Gutierrez-Rostran did present such evidence, as we have seen. He could not be expected to quantify the probability of his being persecuted or killed should he be removed to Nicaragua. The data that would enable such quantification appear not to exist, because to be reliable they would have to specify all persons who had characteristics similar to those of the applicant for withholding of removal and how many of them had been killed or persecuted because of those characteristics. If such data do exist somewhere, the immigration authorities or the State Department may have access to them, but there is no indication of that."
Once again, Judge Posner is very astute in recognizing the realities of Immigration Court and limitations on an applicant's ability to provide evidence.
The full test of Gutierrez-Rostran v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-2216:J:Posner:aut:T:fnOp:N:1686672:S:
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
In an en banc decision, the Ninth Circuit confirmed that once a District Court finds that a litigant has adduced substantial credible evidence that he is a U.S. citizen, the burden shifts to the Government do demonstrate by clear and convincing evidence that the litigant is not a citizen. On appeal, an appellate court will review the District Court's factual findings regard a litigant's citizenship for clear error. In light of the contradictory evidence and credibility issues identified by the District Court, the Ninth Circuit deferred to its finding that Salvador Mondaca-Vega is not a citizen of the United States.
The full text of Mondaca-Vega v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/15/03-71369.pdf
In a short but excellent decision, the Board of Immigration Appeals addressed a scenario that has plagued immigration practitioners for years. Who bears the burden of proving removability when a person has been granted lawful permanent residence and returns from a trip abroad, but the Department of Homeland Security (DHS) alleges that they were never entitled to residency in the first place? In that case, may the DHS charge the returning resident with inadmissibility, even if he does not fit into the narrow grounds listed in section 101(a)(13)(C) of the INA? No - it cannot. A returning resident who does not fall into these narrow grounds can only be charged with deportability, not inadmissibility. This is important, because the DHS bears the burden of proving deportability, while a noncitizen bears the burden of proving admissibility.
The full text of Matter of Pena can be found here: http://www.justice.gov/eoir/file/478111/download
