Immigration

Burdens of Proof in Deportation & Removal Actions

"Deportation," as it is commonly understood, was the procedure used by the U.S. government to remove persons from the country. Similar to deportation, "exclusion" was the procedure for keeping persons from entering the U.S., that is, deciding whether someone was "admissible" to the country.

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"), which amended the Immigration and Nationality Act ("INA"), deportation and exclusion actions were combined into a single action, called "removal" proceedings. For purposes of the IIRAIRA, the term "removable" means that:

  • An alien is inadmissible under INA § 212 in the case of an alien who has not been admitted to the U.S., or
  • An alien is deportable under INA § 237 in the case of an alien who has been admitted to the country

So, in removal proceedings, the parties' burdens of proof depend upon whether the alien is "an applicant for admission" or has been admitted to the United States.

Initial Proof

Regardless of whether the removal proceeding involves an alien's deportation or admissibility, the U.S. government, and specifically the Department of Homeland Security ("DHS"), must first establish by "clear, unequivocal, and convincing evidence" that you, as the person in question, are in fact an alien.

The "clear and convincing" burden requires a showing that it is substantially more likely than not, as shown by the facts and evidence, that the person is an alien. This burden of proof is higher than that in ordinary civil cases, where the burden is by the "preponderance of the evidence," but lower than that in criminal cases, where the burden is "beyond a reasonable doubt."

Aliens Who Are Not Applicants for Admission

If you're not an applicant for admission to the U.S., then you have the burden of proving, by clear and convincing evidence, that you're lawfully present in the U.S. under a prior admission. This is a lower burden of proof than that required for aliens seeking admission to the country. To meet this burden, you must be given access to any records or documents that have to do with your prior admission or your presence in the U.S., such as your visa. However, the government does not have to give you any documents or records that the U.S. Attorney General considers to be "confidential."

Burden of Proof for Removal

If you prove that you're lawfully present pursuant to a prior admission, the burden shifts to DHS. The DHS must show, by clear and convincing evidence, that you're "removable." The DHS must show at least one ground for deportation, such as:

  • You were an inadmissible alien at the time you entered the country
  • You are in the U.S. illegally
  • You committed marriage fraud in order to gain admission to the U.S.

You are not required to prove that you're entitled to remain in the U.S. and/or that you're not removable. The DHS must prove removability.

Deportability can be based on numerous grounds, so check the INA carefully, or seek the advice of an experienced immigration law attorney if you're the subject of a deportation action.

Burden of Proof for Applicants for Admission

If you're applying for admission into the U.S., you have the burden of showing that you're "clearly and beyond doubt" entitled to be admitted and that you're not inadmissible under INA § 212. Grounds for "inadmissibility" include:

  • Having certain communicable diseases
  • Having a physical or mental disorder that poses or could pose a threat to your property, safety, or welfare or of that of others
  • Having a conviction of certain crimes

The "beyond doubt" burden of proof is a higher standard of proof than that required for even the most serious criminal convictions, which is "beyond a reasonable doubt."

Because of the many grounds that exist for "inadmissibility," and because of the high burden of proof, it's critical that you understand the INA on this point, or seek the advice of an immigration law attorney if you're applying for admission to the U.S.

Questions for Your Attorney

  • I've received notice that I'm being deported. Is it too late to apply for admission to the U.S.?
  • How long does the deportation process take?
  • What evidence or proof do I need in order to show that I'm not "removable?"

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