Understanding Burden of Proof in Removal Proceedings

 
CHALLENGING REMOVABILITY
 
OVERVIEW AND ISSUE SPOTTING
 
BURDEN OF PROOF ON REMOVAL CHARGE
 
 
You have your first intake and receive the NTA in your client’s case. In
your interview you learn that your client crossed the border in 2013 and
was never detected by ICE.  Who has the burden of proof?
 
1. Your client; or
2. The government?
 
 
 
 
 
 
Arriving Aliens
The __________ must prove clearly and beyond a
doubt___________.
 
Aliens who are not admitted
The ________ must prove alienage by clear, unequivocal and
convincing evidence.
 
Once established, the ___________ must
prove____________.
 
 
 
Those lawfully admitted
 
The _______________ must prove__________ by clear and
convincing standard.
 
NOTICE TO APPEAR
  
HOW TO RESPOND?
 
Notice to Appear (NTA)
In order to initiate a case against an individual must file an NTA – the charging document
needed to initiate removal proceeding – requirements found at INA § 239
The NTA will include factual allegations and the legal ground(s) under which DHS is
attempting to remove the person = grounds of removability
In order to respond to the charging document you must understand the burden, your client’s
history and what evidence the government has in support of the allegations
Slow down! How you respond can 
make
 or 
break
 the case
 
FACTUAL ALLEGATIONS
 
Most Common Factual Allegations:
Alienage
Possible immigration status and/or history of entries into the United States
Criminal allegations
Fraud allegations
 
 
 
ALIENAGE: 
ISSUE SPOTTING
 
Factual allegations often have to do with immigration status, history of entries to U.S., place of birth – review carefully!
Be aware of these rare but important issues:
Is my client a 
derivative citizen
?
Look for
: Client in U.S. before 18
th
 birthday and one or more parent is U.S. Citizen [ILRC chart]
Note
: 
Nwozuzu v. Holder
, 726 F.3d 323 (2d Cir. 2013) – even if child was not LPR so long as can demonstrate
‘reside permanently’ may derive
BUT requires some objective official manifestation of the child's permanent residence [I-485 application?
Something else?]
Did my client 
acquire citizenship
 at birth?
Very rare and complex but can arise, look out for parents (even grandparents) who may have been USCs
You want to start collecting documents as soon as you suspect may be a citizen and notify ICE, in early days of
NYIFUP we had several releases – if successful refer to civil attorney – can sue for damages
 
EVIDENTIARY CHALLENGES: 
ALIENAGE
 
 
ALIENAGE
What documents do they have to show place of birth?
Authentication challenge to foreign documents
Possible suppression argument – more below – to exclude these documents
I-213 presumed “inherently trustworthy” to show alienage BUT look closely for challenges
Inaccuracies, e.g. Eritrean asylum case
Based on coercion?
Based on interview? Translation?
Lack of detail
 
 
 
POSSIBILITY TO SUPPRESS EVIDENCE?
 
 
 
Motion to suppress evidence: move to 
exclude evidence
 of alienage illegally obtained by government
 
INS v. Lopez-Mendoza,
  468 U.S. 1032 (1984) -  “Exclusionary rule” applies narrowly in immigration context; only 4
th
Amendment violations where:
Egregious and/or
Widespread?*
 
Always ask client about the circumstances of the arrest and how the government obtained the documents
 
PRACTICE TIP: deny alienage! Neither you nor client nor any other witness can admit alienage at any point. Be mindful
in all applications, e.g. FOIA request, or any other communication with government.
 
 
 
CRIMINAL ALLEGATIONS: 
ISSUE SPOTTING
 
Review closely: correct information? (details matter)
Correct court information?
Jurisdiction?
Allegations of 
conviction
 must be supported by documentation
 
EVIDENTIARY CHALLENGES: 
CRIMINAL DOCUMENTS
 
 
 
EVIDENCE:
Certificates of disposition
Criminal complaints/indictments
RAP Sheets
CHALLENGES
8 C.F.R. § 1003.41(a) – formal conviction documents –
To be admissible – either (1) certified by court or (2) authenticated under 8 C.F.R. § 287.6(a)
8 C.F.R. § 1003.41(c) – electronic copy of conviction record should comply with authentication requirements,
but see 
Matter of J.R. Velasquez
Do not assume disposition records or RAP sheets are correct – Review with client and then also 
order files
!
Be aware of errors from underlying criminal case, e.g. YO conviction
I-213 may also be relied upon for criminal issues – challenge them – same as above, unreliability and
trustworthy challenges
E.g. gang allegations
 
CHALLENGING REMOVAL GROUNDS
 
See 
IDP Removal Defense Checklist in Criminal Charge Cases [reviews various
challenges]
Criminal charges – where there is a conviction – more on this later - categorical
approach!
But be aware of “admitted commission” or “reason to believe” grounds where no
conviction
Fraud grounds
Immigration violations
 
PROPER NOTICE
 
CHALLENGING PROCEDURAL ISSUES
 
-
Client must be properly served with an NTA
-
Service issues
-
Mental incompetency – special rules – 8 CFR §§ 103.8(c)(2)(i)(ii)
-
Signed by agent/officer with proper authority - 8 C.F.R.  § 239.1
-
Note: if you win on a motion to suppress evidence of alienage can also be a way to
terminate and in essence challenge the NTA
 
REVIEW QUESTIONS
 
Who has burden of proof in the case of a lawful permanent resident facing removal?
What is standard?
 
What are three key questions you should ask client to determine if derivative
citizenship possibility?
 
What are several ways to challenge the reliability of the information contained in the
I-213?
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This material provides an overview of challenging removability issues, burden of proof on removal charges, and key aspects related to Notice to Appear (NTA) and factual allegations in immigration cases. It discusses who holds the burden of proof in different scenarios, such as arriving aliens and those lawfully admitted. Understanding these concepts is crucial for effectively responding to removal proceedings and identifying essential points to build a solid defense for clients.


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  1. CHALLENGING REMOVABILITY OVERVIEW AND ISSUE SPOTTING

  2. BURDEN OF PROOF ON REMOVAL CHARGE You have your first intake and receive the NTA in your client s case. In your interview you learn that your client crossed the border in 2013 and was never detected by ICE. Who has the burden of proof? 1. Your client; or 2. The government?

  3. Arriving Aliens The __________ must prove clearly and beyond a doubt___________. Aliens who are not admitted The ________ must prove alienage by clear, unequivocal and convincing evidence. Once established, the ___________ must prove____________.

  4. Those lawfully admitted The _______________ must prove__________ by clear and convincing standard.

  5. NOTICE TO APPEAR HOW TO RESPOND? Notice to Appear (NTA) In order to initiate a case against an individual must file an NTA the charging document needed to initiate removal proceeding requirements found at INA 239 The NTA will include factual allegations and the legal ground(s) under which DHS is attempting to remove the person = grounds of removability In order to respond to the charging document you must understand the burden, your client s history and what evidence the government has in support of the allegations Slow down! How you respond can make or break the case

  6. FACTUAL ALLEGATIONS Most Common Factual Allegations: Alienage Possible immigration status and/or history of entries into the United States Criminal allegations Fraud allegations

  7. ALIENAGE: ISSUE SPOTTING Factual allegations often have to do with immigration status, history of entries to U.S., place of birth review carefully! Be aware of these rare but important issues: Is my client a derivative citizen? Look for: Client in U.S. before 18thbirthday and one or more parent is U.S. Citizen [ILRC chart] Note: Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013) even if child was not LPR so long as can demonstrate reside permanently may derive BUT requires some objective official manifestation of the child's permanent residence [I-485 application? Something else?] Did my client acquire citizenship at birth? Very rare and complex but can arise, look out for parents (even grandparents) who may have been USCs You want to start collecting documents as soon as you suspect may be a citizen and notify ICE, in early days of NYIFUP we had several releases if successful refer to civil attorney can sue for damages

  8. EVIDENTIARY CHALLENGES: ALIENAGE ALIENAGE What documents do they have to show place of birth? Authentication challenge to foreign documents Possible suppression argument more below to exclude these documents I-213 presumed inherently trustworthy to show alienage BUT look closely for challenges Inaccuracies, e.g. Eritrean asylum case Based on coercion? Based on interview? Translation? Lack of detail

  9. POSSIBILITY TO SUPPRESS EVIDENCE? Motion to suppress evidence: move to exclude evidence of alienage illegally obtained by government INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) - Exclusionary rule applies narrowly in immigration context; only 4th Amendment violations where: Egregious and/or Widespread?* Always ask client about the circumstances of the arrest and how the government obtained the documents PRACTICE TIP: deny alienage! Neither you nor client nor any other witness can admit alienage at any point. Be mindful in all applications, e.g. FOIA request, or any other communication with government.

  10. CRIMINAL ALLEGATIONS: ISSUE SPOTTING Review closely: correct information? (details matter) Correct court information? Jurisdiction? Allegations of conviction must be supported by documentation

  11. EVIDENTIARY CHALLENGES: CRIMINAL DOCUMENTS EVIDENCE: Certificates of disposition Criminal complaints/indictments RAP Sheets CHALLENGES 8 C.F.R. 1003.41(a) formal conviction documents To be admissible either (1) certified by court or (2) authenticated under 8 C.F.R. 287.6(a) 8 C.F.R. 1003.41(c) electronic copy of conviction record should comply with authentication requirements, but see Matter of J.R. Velasquez Do not assume disposition records or RAP sheets are correct Review with client and then also order files! Be aware of errors from underlying criminal case, e.g. YO conviction I-213 may also be relied upon for criminal issues challenge them same as above, unreliability and trustworthy challenges E.g. gang allegations

  12. CHALLENGING REMOVAL GROUNDS See IDP Removal Defense Checklist in Criminal Charge Cases [reviews various challenges] Criminal charges where there is a conviction more on this later - categorical approach! But be aware of admitted commission or reason to believe grounds where no conviction Fraud grounds Immigration violations

  13. PROPER NOTICE

  14. CHALLENGING PROCEDURAL ISSUES - Client must be properly served with an NTA - Service issues - Mental incompetency special rules 8 CFR 103.8(c)(2)(i)(ii) - Signed by agent/officer with proper authority - 8 C.F.R. 239.1 - Note: if you win on a motion to suppress evidence of alienage can also be a way to terminate and in essence challenge the NTA

  15. REVIEW QUESTIONS Who has burden of proof in the case of a lawful permanent resident facing removal? What is standard? What are three key questions you should ask client to determine if derivative citizenship possibility? What are several ways to challenge the reliability of the information contained in the I-213?

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