Chapter 1

of August 2019 August procedure. rvices lawful removal

being removable from the

en charged with being removable being with charged en an introduction to removal removal to an introduction with thorough understanding of the laws They might be apprehended by law by law be apprehended might They learns that they are here in violation ) ) equipped tohelp theirclients when the

- ROCEEDINGS P admissibility and deportability and the ICE

1

is charged who have be have who s Inside

This chapter contains a general discussion of ’

. U.S. Citizenship and Immigration Se EMOVAL Introduction What R the legal system in which they mustpresent their HAPTER HAPTER Chapter 1

...... 7 ...... C d to give to practitionersd Each chapter is described below: is described chapter Each mmigrants in Immigration Court Immigration in Immigrants Removal Defending Defense: 1.1

1.2 ing of § § § § manual;it contains clear, conci se,and detailed explanations Many practitioners feel ill . . As such, this manual will consider both points in substantive law, law, substantive in points both consider will manual this such, As . . how to ” “ NTRODUCTION TO I provides a framework for immigrationcourt proceedings and fundamentals

’s Inside ...... 1 ...... ’s Inside Next, we focus on the burden of proof, how it differs depending on whether and an understandandan

This manual is designe

Immigrationand Customs Enforcement ( What This chapter will discuss what is meant by in

Chapter 1 Introduction to Removal Proceedings . . : : and get referred to immigration court; orthey might get referred after apprehension at the ) ) While many immigration processes do not reach the courtroom, an immigrant may find . . removal proceedings are, and how an immigrant USCIS § 1.8 § 1.8 15 ...... of Proof Burdens § 1.7 § 1.7 14 ...... of Deportability and Grounds Inadmissibility of Grounds The § 1.6 § 1.6 13 ...... IIRIRA before Proceedings and Exclusion Deportation § 1.5 § 1.5 Admission of Concept The § 1.4 § 1.4 7 ...... Proceedings Removal for Framework Legal The § 1.3 § 1.3 3 ...... Quick Overview A Proceedings: Immigration § 1.2 § 1.2 affecting your clients Toan be effective immigrationadvocate, itis essential to have a

includes: chapter This § 1.1 1 ...... Introduction concept of admission. for rules particular the or deportable, inadmissible being with charged is client your enforcement, and what United States. claims themselves in front of an immigration judge for various reasons. Our goalin writingthis manual has beento provide practitioners with aneasy, practical wayto find information that is specific and relevant to the situations faced by clients in immigration court proceedings for how an immigrant should be charged. Chapter 1 the various stages of a case before an immigration judge with helpful tips and pointers to guide a practitioner through proceedings such as the grounds of inadmissibility and deportability as, wellas guidanceon of immigration laws; they might file a case before ( border or uponexpiration of status. case takesthis turn. proceedings so that they may better assist their clients and placed in removal proceedings a as is designed manual This Chapter 1 these chapterswill discuss procedures andpractical tips on fil facing removal. facing In the next telephonic testimony are discussed. court. immigration or individual hearing. individual or Chapter Chapter etc. crimes, of definitions Chapter Chapter discussionbaseson for filing motionssuppress. to ple taking appear, to notice the of discussion a including hearing, calendar master the at practitioner the assist to information anal apply. they when and them, between differences the grounds, these of analysis Chapter 7: detention. prolonged a after occur judge. immigration whatof elements your clientmust prove be to successful with bond a requestin front the of for tips triggers ground a removal) of used be can that (documents conviction of record the and statutes divisible exists conviction a that prove to produced be can that documents the (INA), Act Nationality discuss will chapter this apply, might that proof of burden the and facing be might client your charges and inadmissibility and inadmissibility Chapter Chapter citize U.S. to claim false and smuggling, alien admission, of time non common Chapter 4: misrepresentation, orders, deportation prior bars, presence unlawful including inadmissibility, of grounds Chapter 3: ( Act Information of Freedom relationship as well as important discovery discovery important as well as relationship with your Chapter 2: whichprovide less due process thanremoval proceedings. removal. permanent residents ( residents permanent August 2019 Immigrant Legal Resource Center

ysis of how the terms terms the how of ysis can pose barriers to relief from removal for many clients many for removal from relief to barriers pose can

dealingwith detained clients and look a at bond hearings. the master calendar hearing and contesting removal charges. removal contesting and hearing calendar master the

We also pause to distinguish expedited removal and administrative removal processes processes removal administrative and removal expedited distinguish to pause also We 6: 8: 5:

client and client

four chapters, we will briefly look at the various relief options available to an immigrant to immigrant an available options relief various at the briefly look we will chapters, four

Representing Trial Pr Trial The MasterCalendar Hearing and Criminal Grounds of Removal of Grounds Criminal Non Non Case Assessment and Discovery and Assessment Case - criminal grounds of deportability, such as deportability for being inadmissible at the the at inadmissible being for deportability as such deportability, of grounds criminal

These chapters are designed for initial case assessment and analysis. and assessment case initial for designed are chapters These -C -C

and alien smuggl alien and

Motions to continue, as well as common motions to change venue and venue change to motions common as well as continue, to Motions riminal Grounds of Deportability of Grounds riminal riminal Grounds of Inadmissibility of Grounds riminal deportability. Chapter 6 discusses mandatory detention and special and detention mandatory discusses 6 Chapter

assessing your client your assessing eparation LPRs

In addition, we will cover possible motions o motions possible cover will we addition, In

“ Detained Clients and Bond Hearings adings, and contesting removal. ) conviction an an when proof of burden the and , , the effect of post of effect the , FOIA

and Motions and

These

) ing. documents. criminal obtaining and requests ” and and

are the most common grounds alleged for removal of LPRs of removal for alleged grounds common most the are ’ s case. s steps one can take to fully prepare for court for prepare fully to take can one steps “ sentence . .

Chapter 1 Chapter The subject of Chapter Chapter of subject The . This chapter covers preparation for the merits hearing, hearing, merits the for preparation covers chapter This

Chapter Chapter - conviction

This chapter will discuss the attorney the discuss will chapter This Contesting Contesting

” . are defined under the Immigration and and Immigration the under defined are

2 This chaptercovers someof the more .

discusses important aspects of working working of aspects important discusses - non the covers chapter This

This chapterprovides adetailed relief and appeals, federal v federal appeals, and relief . ing, as well as a discussion of of discussion a as well as ing, This chapterprovides an in R immigrant emoval voting. unlawful and nship This chapter includes a breakdown breakdown a includes chapter This .

ne might file before the the before file might ne This This

This chapter includes practical practical includes chapter This 5 is the criminal grounds of of grounds criminal the is .

c

i Nowyou that know what bond hearings that might might that hearings bond hapter includes practice practice includes hapter s seeking relief

to prove a conviction conviction a prove to

It also includes an an includes also It

The first of of first The criminal criminal - , suchas ersus client client -

from from depth depth for , sta te te Chapter 1

nal Once a . Once August 2019 August files a ) files . The opposing opposing The . DHS

In addition, this

will highlight forms of

In this chapter, we will will we chapter, this In

. Overview . of Justice Department U.S. h is represented by the Office of of the Office by is represented h ation to assist the practitioner 10, 11, and 12 and 11, 10, This chapterdiscusses the differences A Quick Quick : A elated Relief

s s

scusses motions to reopen removal We will discuss prosecutorialdiscretion, and This chapter covers relief for lawful lawful for relief covers chapter This

. al and the former waiver provision, INA INA provision, waiver former the and al are part of the the of part are The courts immigration

provides an overview of the bars to relief in order Chapter

Chapter 1 the Nicaraguan Adjustment andCentral Americans Appendix A Appendix at NTA sample at a look can You mmigrants in Immigration Court Immigration in Immigrants Removal Defending Defense: under

and motions based on ineffective assistance of counsel. Sample . . This final chapter di In addition, we will brieflydiscuss relatedforms of relief, Chapter 9 includes practical inform orders, Immigration Proceedings

gration Review, which falls under falls thegration which Review, official charging document the document stating factual official ischarging basis for an the , which , and the former suspension of deportation. This chapter will provide an overview of common issues that arise when when arise that issues of common overview an provide will chapter This

a notice to appear, and the notice to appear is filed with the immigration immigration the with filed is to appear the notice and appear, to a notice . oluntary departureas an option. § 1.3 § 1.3 proceedings. PR Cancellation of Removaland R roceedings under INA § 240 INA under roceedings in absentia -L with , but the majority of immigrants proceed without any representative any without proceed immigrants of majority the but , oval p oval Non LPR Cancellation and Former 212(c) Asylum lawful permanent resident cancellationof removal, relief form a may ofone that only Filing for Relief. for Filing removal : : : : : : ) NACARA

10 12 Rem . .

212(c) departure. voluntary and discretion prosecutorial relief that arise frequently in complex removal proceedings. 9: Chapter considering options and filing for relief from removal. threshold issues, such as who has jurisdiction over the relief you wish to seek. v discuss will chapter Chapter - non discuss apply for in Relief ( Act 11 Chapter permanent residents, including cancellation remov of cancellation including residents, permanent § Chapter including cancellation and suspension representingan asylum applicant inremoval proceedings. between withholding of removal and asylum and removal of and withholding between proceedings after the judge has already made a decision. We discuss the various rules and bases bases and rules various the We discuss a decision. made already has judge the after proceedings pertaining to motions to reopen. This chapter includes a discussion of motions to pursue asylum, motions to reopen to properlyscreen and prepareyour clientfor questions in court. to Reopen: Motions 13: Chapter motions are providedin Appendix Z In addition, this manual includes sample materials and useful resources within the appendices. A. charges against the noncitizen, and stating the charges or reasons under the law which make the the make which law the under or reasons the charges stating and noncitizen, the against charges States. United the from removable person One of many officers of One court. many may officers within create a DHS immigration the with to appear notice (NTA) toNotice Appear served is person Immi for Office Executive party the is alienagainst in the whic proceedings removal DHS, court, the person is in removal proceedings. proceedings. removal in is person the court, in nature. are administrative proceedings Removal Removal proceedings begin when the U.S. Department of Homeland Security ( Security of Homeland Department U.S. the when begin proceedings Removal Although proceedings are administrative proceedings, they are adversarial in nature (meaning that that (meaning nature in adversarial are they proceedings, administrative are proceedings Although fi a makes judge the and other, each against argue that court in present sides two are there may facing removal by represented immigrant The orbe an attorney determination.) accredited representative Chapter 1 Immigra (C.D. Cal. Oct. 2014) 29, (C.D. Cal. Apr. 23, 2013); Franco 2013). Board, the immigration the Board, judge BIA the Appeals (BIA). After the judge issues decision,a either party may reserve appeal to the Board of Immigration support of the respondent’ Thereafter, an individual or meritshearing will be set to hear testimony and present evidence in calendar hearing, the judge will also ask if the respondent has any relief f 2 1 proceedings: might in they as haveadministrative same rights proceedingsnot the removalare nature, do respondents in respondent respondmust or answer to the charges brought against The immigrant charged with removal is considered the respondent trial attorney.) Counsel,” although you will hear advocates refer to ICE counsel as the “ CounselChief for ICE.(The attorney for governmentthe is often then “ an August 2019 Immigrant Legal Resource Center charges. begin with a master calendar hearing in which the respondent must appear and answer the Seehearing. 6 Chapter opportunityan to request a bond be set byan bondimmigration a judge.in Thiswould take place hearings, status conferences, and ind jurisdiction. case may take years to adjudicate. § INA at § provisions reinstatement generally those that have already received an order of deportation or removal from the U.S. (see removal (see expedited themselves before an immigration judge in immigration court. noncitizen has a right presentto case a before an immigration judge, the client will find Once in removal proceedings, the chronology of a case is illustrated below. Assuming

Some immigrants do not have the right to removal proceedings before an immigration judge. Those facing M of Matter • • • • • •

See also,Franco tion Review (EOIR), U.S. Dept. of Justice (DOJ), to all immigration judges (Apr. 22, 2013). ’ mentally ill noncitizens may be able secureto an attorney. r to Right Right Right beto pr Right to c to Right Right to an interpreter. Right to to Right examineRight to and present evidence, witnesses, call etc. See C s decision becomes the agency criminal proceedings.

Hearings before the immigration judge include bond hearings, master calendar -A-M-

hapter 7 hapter for more information about the master calendar hearing. Inthe master The BIA is an administrative appe ue process.due epresentation at no expense theto Government. INA 240(a)(4)(A). , 25I. & N. Dec. 474 (BIA 2011); also see ontact ontact § § - ovided a l a ovided Gonzalez v. Holder ; 1.3.B); those who entered as a vis Memorandum from Brian M. O for more information on bond and detention.information on bondand for Otherwise, more all proceedings their s case.

consulate §1236.1(e). CFR . 8 ’s ’s decision is not final. An appeal must Nonetheless,noncitizens removalfollowing in the rights have 8 CFR 8

- 241(a)(5)), with certain exceptions. ist of available legal services. Gonzalez v. Holder

If detained, the case will likely take months, depending on the take depending months, likelyon the case will If detained, the ividualor merits hearings(trial). §1240.5 ’ , No. CV 10 No. , s finalthe with pending appeal is the decision.as long So Chapter 1 Chapter , No. CVNo. , If an appeal is filed with the BIA, the with filed appeal is an body.If llate – 02211 DMG (DTBx), 2013 WL 3674492, at *5 ’

Leary a waiver entrant entrant a waiver (see § INA

Matter of E of Matter - 10- , Chief Immigration J., Exec. Office for

02211 DMG DTBX, 2014 WL 5475097 8 CFR §1003.61 CFR 8 2 If the If

1 The The proceedings. in them by DHS. INA

-S-I- be filed within thirty clientnot isdetained, the Detained clientshave might , 26 & I. N. Dec. 136 (BIA §240(a)(4)(B). TA, rom removal. Assistant Chief ”stands for which 217(b)); and Because However, the the

days

Chapter 1

3

August 2019 August States accept. accept. of Appeal choose to of the United Reviews Court Supreme Court as well as as as well decisions that it

“expedited to “expedited

. . Appeals appeals filed within 30 days (APA) of BIA decision. Circuit Court of Reviews certain

to a Circuit Court of Appeals, the Appeals, of Court to a Circuit Removal proceedings as just described as just described proceedings ” Removal

In some cases, it is possible to appeal the the to appeal possible is it cases, some In , parolees or, parolees asylum residents permanent lawful Procedure Act Procedure order of Reviews they may be deported despite a pending appeal appeal apending despite be deported may they Board of removal. Issues final Issues Chapter 1 appeals of IJ Immigration 242(a)(2)(B). Appeals (BIA) Appeals decisions filed within 30 days. § credible fear. credible mmigrants in Immigration Court Immigration in Immigrants Removal Defending Defense: “ INA

, APA

. . s a removal decision a removal s See

mandamus Master Master appeal Hearing Individual - District Court Calendar Judge (IJ) those already within the U.S. that come to the attention of immigration immigration of to attention the that come the U.S. within already those Hearing(s) - challenging deportation/detention on certain citizenship claims citizenship certain detention, challenging petition Bond Hearing

Immigration

- generally do not have a chance to present their case in removal in removal case their present to a chance have not do generally cases; file a stay of removal or removal of a stay file also s decision for the appeal to be heard. be to appeal the for s decision

habeas corpus habeas may subject may be border the at themselves presenting Noncitizens and claims under the Administrative the under claims and , though in limited circumstances may do so, such as such so, do may circumstances limited in though , cases immigration to hear n if they are not admissible Hears habeas corpus a habeas the most part, for for part, most the pending Starting Starting Removal ’s decision to the relevant Circuit Court of Appeals, though not all cases may be appealed. may cases all not though Appeals, of Court Circuit relevant the to decision ’s removal by may detain issuing NTA, Proceedings Detention & & Detention DHS initiates proceedings. for for constitutional or legal challenges grounds; decides citizenship in some client or release , For example, a Circuit Court of Appeals does not have jurisdiction to hear a case appealing only a a only appealing case a hear to jurisdiction have not does Appeals of Court Circuit a example, For re

Board discretionary decision of the agency. agency. the of decision discretionary However, ifHowever, therespondent must noncitizen 3 from the judge’ from Federal district courts generally do not have have do not generally courts district Federal judge the(assuming ordered removal). immigration jurisdictio hearing authorities. mandamus a removal” removal” Most aliens” “arriving a demonstrate successfully who seekers proceedings, with important exceptions including including exceptions important with proceedings, Chapter 1 subject to expedited removal under § 8 7 6 5 4 conducted by asylum officers which are part U.S. of Citizenship and Immigration Services private interview with the asylum office. important that we educate t of return. read scripta explaining that have they righta to speak to asylum an officer if they aexpress fear have a persecutionfearassert of a tortureinterviewed or beto are Noncitizens subject to expedited removal who indicate intentionan to apply for asylum who or counsel or to ahearing before an immigrat enforcement, prosecutor, and to right a judge.have Individualsnot removal expedited facing do within U.S. Customs and Border Protection (“ An officer of DHS authority has to issue orderan of expedited removal. Most often officers immigration judge. removal and noncitizensmost will have an opportunity present to their case in front of an Outside of this limited context, immigration officers cannot process someone for expedited thefrom border and who have been in U.S.the for 14days or less, toand those who arrive bysea. case.the Thus, t whichcase, blocks the expansion expeditedof removal takingfrom effect while the court decides Case 1:19 LLP filed challengingsuit the legality of expansion,this M Council, the American Civil Liberties Union, and the law firm Simpsonof Thatcher Bartlett& evidence or presentto their acase to judge. On August 6, 2019, Americanthe Immigration United States. This would allow noncitizens to deportedbe without opportunity an gather to who been have living in the United States for two years less, or whoand live anywhere in the 23,On July 2019, DHS notice, issueda expanding the reach of expedited removal individuals to officers within one border hundred the of miles applied those that expeditedto will be announce removal years , this provision has never been used thisto extent. In 2004,DHS used provisionthis to whoanyone has not been admitted or paroled and has presentbeen in U.S.the for lessthan two INA §212(a)(7). words,In other person a who attempts enterto notdoes have proper documentation hasor committed fraud or falsely claimed U.S. citizenship. officers removeto a person a at port of entry process can only be applied limited in circumstances. Expedited removal allows DHS remove to arriving aliens without full removal proceedings. B. August 2019 Immigrant Legal Resource Center (Jun.2, 2015).

See See 69 Fed. Reg. 48877, 48880 (2004). Cuban citizens who arrive at U.S. ports Expedited removal provisions can be found at INA §

AILA BriefAILA BIA in Artesia Statements CaseCFI Border Q&A and on § CFR 8 “ Expedited removalExpedited credible fear, 7 - There have been various reports of abuses of this process, and as advocates, it is cv

-02369. On September 27,2019, courtthe granted preliminarya injunction in this

235.3(b)(2)(i). he he expedited removal process continues apply to only to those within 100 miles While ” must” be referred anto immigration judge

the statute

he communityhe about their right to express a offear return and seek a

235(b)(1)(F) of the Act. pro - of vides Attorneythe General may apply this provision to - entry aircraftby fro exempted are 8 For decades, credible fear interviews have been ion judge.ion Chapter 1 Chapter

(such as at the border or anat airport) who either CBP , who is inadmissible under INA §212(a)(6) or within 235(b). ” ) ) issue these orders—actingas law

Generally, this provision allows DHS

days of entry. fourteenof days

detected by immigration enforcement ake theake Road New York v. McAleenan regarding their fear, and . DHS officers are required to ’ s, AILA Doc. No. 15061201 m this first category of aliens aliens of category first this m 6

if found to to found if 4 This This

5

, Chapter 1

or the credible for more August 2019 August 02965 02965 - cv - le fear screening screening fear le

1:19

No.

. How that person is is person that . How in the credib a law enforcement agency agency enforcement law —a Julia Ainsley, Stephen Miller wants ; ; or deportable . Individuals removal inIndividuals placed expedited

inadmissible Chapter 1 Concept of Admission https://lat.ms/2mqC263 mmigrants in Immigration Court Immigration in Immigrants Removal Defending Defense: The M),

Prior to the passage of IRIIRA, immigration immigration IRIIRA, of passage the to Prior above. 10 https://reut.rs/2oeZpjN 5 5 1. S. will assign dozens of border agents to migrant asylum interviews, interviews, asylum migrant to agents border of dozens assign will S. be removed through this process. Instead, they should be served served be should they Instead, this process. through removed be

Nick Miroff, U.S. asylum screeners to take more confrontational confrontational to take screeners more Nick Miroff, asylum U.S. ; ; § § to into the United States. United the into Removal Proceedings Removal for Legal Framework The Chapter 6 for on the information more Chapter asylum See process. egal Immigration Reform and Immigrant Responsibility Act of 1996 1996 of Act Responsibility Immigrant and Reform Immigration egal

. In order to know whether a person should be charged under laws of laws of under charged be should a person whether know to order . In

Reuters, U. ; ; l can either be charged as charged be either l can § 1.4 The Ill

Toole, Border Patrol agents, rather than asylum officers, interviewing families for ‘ for families interviewing officers, asylum than rather agents, Patrol Border Toole, 128 (1996). 128 ’ S. citizenship also may have their claims reviewed by an immigration judge. judge. immigration by an reviewed claims their have may also citizenship S. deportability amended the Immigration & Nationality Act (INA) to provide for a whole new new whole a for provide to (INA) Act & Nationality Immigration the amended 11 ” proceedings as described proceedings ” Despite the of Despite this there are change, significance records available no publicly 9 ), trained specifically to adjudicate asylum claims. According to reports, DHS has begun begun has DHS reports, to According claims. asylum to adjudicate specifically ), trained filed Oct. 2, 2019). 2, Oct. filed

https://nbcnews.to/2YpVQni Molly O , L.A. Times (Sept. 19, 2019, 5:50 A 5:50 2019, 19, (Sept. Times L.A. , ’ merican Immigration Council v. U.S. Customs and Border Protection et. al., et. Protection and Border Customs U.S. v. Council Immigration merican Pub. 104- Pub. L. A

See removal

structure to address entry, exclusion, deportation, and admission. After admission. and IIRIRA, deportation, we exclusion, entry, now to address havestructure “ will framework prior This proceedings. deportation and exclusion into divided were proceedings . in § 1.6 briefly be discussed remova in person A fear an NTA and released into family care where possible. where care family into released and NTA an limited very in except parole for eligible not are they and bail, without detained are proceedings enforcement law a for or emergency a medical for discretion of a matter as (i.e., circumstances 12 Chapter purpose). See (IIRIRA) Individuals subject to expedited removal who claim lawful permanent resident, refugee, or asylee or refugee, resident, permanent lawful claim who removal to expedited subject Individuals U. or status not are juveniles Additionally, 11 Border Patrol, not asylum officers, to determine migrant asylum claims, NBC News (July 29, 2019, 7:31 7:31 2019, 29, (July News NBC claims, asylum migrant determine to officers, asylum not Patrol, Border PM), 2019), 7, (May Post Wash. border, the at away migrants more turn to aims Trump as approach https://wapo.st/2JzaEe4 PM), 6:09 2019, 9, (May Reuters.com 10 (D.D.C 9 — seekers asylum towards misconduct and of abuse of history a with process. this documenting in shift functions. (USCIS CBP from officers with officers asylum USCIS trained to replace charged depends on whether they are seeking admission or have already been admitted into the the into admitted been already or have admission seeking are they on whether depends charged States. United be may illegally here are believes government the whom States United the within already Persons statuson their in current Depending judge. before an immigration proceedings removal in placed inadmissibility of grounds the under be charged either will immigrant the States, the United of grounds A key question in understanding what immigration laws will apply in a particular case is whether whether is case in a particular apply will laws immigration what in understanding key question A admitted been has the person information on challenging prolonged detention. prolonged information on challenging for U.S. framework a new provided 1996 30, on September enacted legislation Landmark immigration law. Chapter 1 have alreadyhave been admitted, government the must show that they are deportable. Often weOften will use the word “pe them can have serious a impact on your client’ INA at found The grounds of inadmissibility are found INAat §212(a), and groundsthe of deportability are Generally speaking, the “ terms showmust that they are admissible to Unitedthe States havea or basis relief for The followingThe people are subject to the grounds of inadmissibil removedUnited from the States. inadmissibilityor of legally admissiondeportability, refused canbe grounds to therefore and or otherthe hand, all important to understand, however, that U.S. citizens are never subject removal to proceedings they are already living within the United States. considered “ subject to groundsthe of deportability. In contrast, those who have not been admitted are inspection authorizationand byan immigration officer.” Those who have been admitted are § 101(a)(13)(A) defines admission as “the lawful entry [an] of alien into the United States after months of the date the visa was granted. See six within and is valid, visa immigrant the border while U.S. a at admitted are they unless and until resident 12 A. Enforcement (ICE), which is agency an DHS.of represented byattorneys in Officethe of Chief Counsel, under Immigration Customsand Department Justice,of Executive Office Immigrationfor Review. The opposing party is new agencies under DHS. Naturalization Service), which has now been broken up its and func USCIS however, youwill need to identify the specific sub-agency with whom you are dealing, such as depending on the context, we will refer generally to DHS and the immigration court . In practice, N admitted, they will be subject to the grounds of inadmissibility. Those who deportability.of grounds If personthe is present thein United States without ever having been States. inadmissibility or deportability, we findmust out whether havethey been admitted August 2019 Immigrant Legal Resource Center

OTE A person with an immigrant visa from a U.S. consulate abroad does not become a lawful permanent

• • • •

: If one has already been admitted theto United States, the immigrant will be subject to Because the grounds of inadmissibility deportabilityand come upbefore various agencies , ICE, or CBP. or ICE, , Definition of admission People who Parolees Applicants for adjustment of sta for afor visa waiver, and immigrant visa holders arriving for the first time; Applicants for admission border,at the such as nonimmigrant visa holders, those eligible

applicantsfor admissio § 237(a). Though they are similar, they are not identical. The differences between —see noncitizens—including lawful permanent potentiallyresidents— subjectare to are undocumented who(those entered without inspection); Some practitioners Some may refer to INSthe (the Immigration and INA §101(a)(13)(B); In removal proceedings, the immigration judge partis of the

ople admission

” ” instead of “ n” and subject are t to tus; 22 CFR § CFR 22 and “ and ”

Chapter 1 Chapter s eligibility for relief from removal. noncitizens “ or ” admitted § § 42.64(b), 42.72.

” ” he grounds of inadmissibility, even if are defined in INA §101(a)(13).INA INA in defined are It is is manual. this in ” It aliens

ity: tions are divided among the amongdivided the aretions

are seeking admission are seeking 12 .

For those that For

to the to United On . On Chapter 1

: :

August 2019 August ere waiting at at waiting ere 101(a)(13)(C), 101(a)(13)(C), they w they which is advance is advance ” which

Under § INA ty: A person who is paroled in can in can is paroled who person A he time, therefore, they are subject subject are they therefore, time, he advance parole, advance will not be subject to to subject be not and will border the ” at ” persons who are outside the United the United outside are who ” persons

Most of t considered to be making a new application for for application a new making to be considered situation is the same as if as same the is situation

parole in not vel their Chapter 1 See below. See mmigrants in Immigration Court Immigration in Immigrants Removal Defending Defense:

. travel abroad and then come home to the United States, they they States, United the to home come then and abroad travel

e persons who are detained at the border can be released from from released be can border the at detained are who e persons § 101(a)(13)(B); —see§ 101(a)(13)(B); INA d as visa waiver entrants; waiver visa as d A person in the United States who is in the middle of applying for for applying of middle in is the who States United the in person A

, 25 I. & N. Dec. 761 (BIA 2012), holding that refugees are subject to the grounds of of grounds the to subject are refugees that holding 2012), (BIA 761 Dec. N. & 25 I. , The DHS has the power to “ the power has DHS . The 13 seeking admission “seeking to be considered be -K- arole

special rules governing admission of returning lawful permanent residents residents permanent lawful returning of admission governing rules The special § 101(a)(13)(C) INA under n p Refugees; Visa holder and visa waiver overstays in the United States; States; United the in overstays waiver visa and Visa holder INA INA within fall who residents, conditional including residents, permanent lawful Certain entry of time at § 101(a)(13)(C) People admitte People Lawful who tra residents permanent Lawful permanent residents, including conditional residents, except those who fall within within fall who those except residents, conditional including residents, permanent Lawful § 101(a)(13)(C). INA 1. Alien crewmen Alien Nonimmigrant visa holders within the United States following a lawful admission; lawful a following States United the within holders visa Nonimmigrant lawful permanent residents : O Matter of D

ssion, and ifssion, in be removal will subject to proceedings placed the of inadmissibility. grounds • • • • • • •

See OTE

B. re- upon admission a new making not is and freely, travels resident permanent a lawful Generally, are LPRs Usually, States. the United into entry eachadmission time fromthey a return trip abroad. to the grounds of deportability rather than the grounds of inadmissibility. of inadmissibility. grounds the than rather of deportability to grounds the admission for applicant an be considered will an LPR in which circumstances there are However, and § 101(a)(13)(C) in INA described are circumstances These trip abroad. a from upon return listed below: rule. this to exceptions six are There inadmissibility. of the grounds they if admission seeking is States United the outside trip a from returning resident permanent a When 13 position is that once in the United States all of these persons are still deemed to be seeking seeking be to deemed still are persons these of all States United the in once that is position admi deportabili of grounds the to subject are people The following for humanitarian reasons, for example to permit them to obtain medical care in the United States. United the in care medical obtain to them permit to example for reasons, humanitarian for See § 212(d)(5). INA “ seek can application other some for or status of adjustment 212.5(e). See in. CFR § 8 back be paroled and States the United of go outside to permission inadmissibl some Additionally, The See 8 CFR § 212.5. parole. DHS grants DHS the if States United the into come and detention N inadmissible. being with charged are and border the at or States enter thephysically States, legally but United in persons to bring parole humanitarian grant can DHS the The for admission. applying border, generally will not deportability because they have been admitted to the U.S. the to admitted been have they because deportability Chapter 1 a new admission upon return to the U.S. as long as the departure was “ of IIRIRA.of These LPRs are covered under- pre deportation proceedings allowed lawful permanent residents to make “ described in INA §101(a)(13)(C)(v) before There is a limited exception for lawful permanent residents who were convicted of an offense 14 August 2019 Immigrant Legal Resource Center § § to relyto on the law as was.it that thoseCourt held the departures without seeking a new admission theto United States. Lawful Lawful permanent residents who come within any of these t six exceptionsin be will to be be to admitted, they provemust that they do not come within ground a of inadmissibility. position as other noncitizens seeking admission and will be considered “arriving aliens.” In order

101(a)(13)(C)(v) did not apply to LPRs with convictions that pre See 1. 2. 3. 5. 4. 6. Vartelas v. Holder have abandonedhave or relinquished permanent resident status; 2. cancellation removal.or of waiver residence. inadmissible for his tuberculosis in addition chargingto him with abandonment of his place him removalin proceedings with Notice a to Appear chargeand himwith being have beenhave absent from the United States for a continuous period of more 180than s; day have engagedhave in illegal activity after departing the United States; have committedhave an offense identified in INA §212(a)(2) (grounds of inadmissibility have attemptingare enterto or has entered without inspection. cancellation of removal to forgive the offense; OR relating crimes),to unless the person was granted INA §212(h) relief INA §240A(a) or deemed not be to “ of ground health inadmissibility.a returning As a is which permanent resident,is Marc weeks attendto a conference and then returns to the United States. He has tuberculosis, Example: States 190for days? In that case, when he Exampl circu Legally, Marc has not made anew admission. without triggering removal proceedings. “applicantmake him an for admission.” Marc should lawfully re becausehis tuberculosis oneof those not is inadmissible and place him removalin proceedings as a person “seeking admission” knows thathe is inadmissible for tuberculosis, it cannot charge him with being having been absent for more than 180days under DHS INA §101(a)(13)(C)(ii). The

The continuingThe validity of entry,re mstances that would cause the government to treat him as an arrivingan alien. asgovernmentwould him mstances treat causethat to the left the Unitedremoval extraditionStates or the under proceedings; while left e:

Marc mightMarcmightor not meet requirements the discretionary a for medical Marc is a What if LPRMarc takes if another trip and What , 566 U.S. 257 (2012), in which the U.S. Supreme Court held that INA who pled guilty to offense an to prior the change in shouldlaw be able seeking admission Thus,those who lawful

permanent resident. In 2012 tr he

IIRIRA April 1, 1997. would have conviction a described in INA Chapter 1 Chapter ” at” the U.S. border. Therefore,although DHS the - entry, law, in which they are not considered to be making returns, he will be things listed in INA §101(a)(13)that would

His tuberculosis is and the Fleuti 14 The law before April 1, 1997under this time stays outside the United - dated April 1, 1997, the effective date brief, casual, and innocent. In a recent Supreme Court case, avels France to for two “ exception seeking admission, brief, casual -

enter the Unitedenter the States one of the the of one not

, and innocent”, and

he same

” ” ” for

can

Chapter 1

15 , enter (A August 2019 August The court rejected the rejected court The her inadmissible. her Mr. Camins relied on the on the relied Camins Mr. (just as IIRIRA created created as IIRIRA (just

doctrine and not doctrine be considered

esident who is charged with with charged is who esident

101(a)(13)).

§ Luckily, while she is here in the U.S., as a the in U.S., is here she while Luckily, The court disagreed and held that the new new that the and held disagreed court The Chapter 1 ly ly at the exclusive look not do exceptions These , and innocent. innocent. , and 16 sentence.) mmigrants in Immigration Court Immigration in Immigrants Removal Defending Defense:

while she is she in the while U.S. d still benefit from the Fleuti the from benefit still d ” included a presumption that all lawful permanent residents residents permanent lawful that all a presumption included ” month 13) (amending INA INA (amending 13) -

entry applies to a lawful permanent r permanent lawful a to applies “ seven

as brief, casual as brief, 1101(a)( ” upon return to the U.S. now, based on a conviction by plea from plea by conviction on a based now, U.S. the to upon return ” and innocent and not a meaningful departure interrupting their interrupting departure meaningful a not and innocent and

th a s argument that IIRIRA was not impermissibly retroactive because it was was it because retroactive impermissibly not was IIRIRA that s argument , 374 U.S. 449 (1963). 449 U.S. 374 , Mr. Camins is a lawful permanent resident who was convicted of a of moral a who was convicted resident ispermanent a lawful Mr. Camins permanent resident in 1989. In 2002, Susie 2002, Susie In in 1989. a lawful resident as permanent admitted was Susie

s prior guilty pleas (an inability to travel abroad without becoming inadmissible) inadmissible) becoming without abroad travel to inability (an pleas guilty prior s ’ Upon his return, the government asserted that he was making a new admission to admission new making a he was that asserted government the return, his Upon Rosenberg v. Fleuti v. tontry the United States upon return from a In trip Rosenberg abroad. admission “ definition Fleuti permanent resident resident permanent lawful 101(a)(13(C). 301(a), 8 USC § USC 8 301(a), § their departure w departure their 101(a)(13), effective April effective April § 101(a)(13), in INA admission of definition statutory the contrast, (In

§ within one of the six exceptions. six the of one within committed one crime involving moral turpitude that would make moral that make turpitude committed involving one crime would is deportable not She deportability. of grounds theto subject is Susie resident permanent Susie impact not does Inadmissibility to removal. subject not is and offense this one for as a theft offense wi offense theft statutory definition did not apply, because this would attach new legal consequences to consequences legal new attach this would because apply, not did statutory definition the LPR residents. to such applied if retroactive impermissibly be thus and government’ that held it abroad; to travel decided Mr. Camins before enacted 1996. in guilty, pleaded he time the at old law Example: This was before the new definition of admission took admission of definition new the before was turpitude in1996. This January offense a sick to visit weeks three for abroad went he 2000 effect December on 1, In April 1997. relative. who resident a permanent was he because § 101(a)(13), INA under States the United for crimes. inadmissible while traveled Example: The old INA fall 17 ow thatow IIRIRA IIRIRA Rosenberg v. Fleuti v. Rosenberg See

the United States after that date shoul date that after States the United for admission. as applicants before April 1, 1997. Those who pled guilty before that date, traveled, and then sought to re- sought then and traveled, date, that before guilty pled who Those 1, 1997. before April making a new It stated that permanent residents can rebut rebut can residents permanent that stated It exception. an important created Court the Supreme that establish they if trip abroad a from return upon entry making an are they that the presumption the trip brief,was casual, residency. 1, 1997, presumes that returning lawful permanent residents are not seeking admission unless unless admission seeking not are residents permanent lawful that returning 1, 1997, presumes they character of the absence, but also look to bad behavior on the part of the resident.) resident.) the of part on the behavior to bad look also but the absence, of character the in entry defining language statutory the replaced of admission definition statutory 1997 The Act. 17 15 16 § 101(a)(13) before April 1, 1997 will not be considered to be seeking an admission if they can they if an admission seeking to be considered not be will 1997 1, before April § 101(a)(13) sh Before IIRIRA came into effect on April 1, 1997, there were different rules governing when a when governing rules different were there 1997, 1, April came on effect into IIRIRA Before anentry made abroad a trip from returning resident permanent lawful Entry is Entry a admission). is seeking resident permanent lawful returning a when for rules special interpretation. judicial of history long a with art of term re -e are seeking Before Before of1997, the definition Chapter 1 in Matterin Quilantan of 20 t- 19 18 August 2019 Immigrant Legal Resource Center thus vacatingthus published its decision following BIA’the removal proceedings. point has entered without inspection will and be charged under the grounds of inadmissibility in proceedings. A person who entered the United States in some way other than through check a undocumented. This person willcharged be under the grounds deportability of in removal proper visa,a but if they overstayed the authorized period stay, of they are now here instance, person a who entered with a tourist visa was initially admitted to the United States with admitted borderat the or entered without inspection, and therefore not previously admitted. For Individuals that are present thein United States undocumented and could have either been § 245(a), an “ § 101(a)(13)(A). using someoneelse Orozcoin v. Mukasey , the CircuitNinth found that someone who had entered the United States § 101(a)(13)(A) would result a in finding that such entry wouldan not be an admission. Indeed, new definition of admission was enacted with passagethe of IIRIRA, was there concern that INA not lawful. After admissionthoughwas even admitted,the been passport) has foreign or card the jurisdictions noncitizen a who used has fraudulenta visa (e.g., a borrowedfake or border-crossing D. § 245(a). It unclearis what in other contexts procedural regularity bemight sufficient. consideredis admitted for purposes of adjusting status to lawful permanent resident under INA someone who enters fraudulently using another’ This exceptionThis does not apply to LPRs who are found be to seeking admission for other reasons, yet beenyet “ A noncitizen who gains admission to the United States bypretending to be U.S.a citizen has not C. convicted of offensean triggering inadmissibility prior April to 1, 1997. exc Fleuti § 101(a)(13)(C)(ii). This assuch a overtrip 180 days, s or status

Matter of Quilantan of Matter Orozco 521 F.3d 1068 (9th Cir. 2008).

- when But SusiedecidesBut take to Special was brief, casual two week trip 2013in visit to her mother, under Vartelas Example: removalin proceedings as an arriving alien, and subject grounds to of inadmissibility. isshe now considered beto seeking an admission, and inadmissible.is be She can placed § 101(a)(13), Susie has crime a thatwould make her inadmissible, and thus by travelling, is not subject to INA §101(a)(13) because her conviction was Aprilbefore 1,1997. False

v. admitted,

, Mukasey, - admission admission admission as aU.S. considerations for undocumented individuals in removal proceedin 18 The Ninth Circuit later granted the parties If instead, Susie had committed the crime ’s pe ’s ” because” the person was not admitted and inspected as an alien. , 25 I. & N. Dec. 285 (BIA 2010). 546 - , involved- 20 ” only” requires “

rmanent resident card had not F.3d and innocent, and the the BIA that,at held least for purposes of an adjustment under INA

1147

fraud

ubject to a (9th eption only applies where the returning been applies residenthas the eption only where citizen compared toadmission on a fraudulent v two - or

Cir. — - - misrepresentation#cases week procedural regularity. Thus,” under MatterQuilantan of , it was just a short trip to visit her mother non

2008); Chapter 1 Chapter trip trip 2013in to visit her mother INA in Peru. Under - crime s permanent resident card or other false document

http://www.legalactioncenter.org/litigation/adjustmen

- based

been admitted as defined in INA s grant to reopen case.the grounds inadmissibility.of INA See

’ joint’ motion to dismiss the case, in 1995, then took a a took guilty 1995,then pled in and . . , she would argue that her trip 19 —andshe that Subsequently, In most isa gs

Chapter 1

. . August 2019 August Under the Under the

and admission The crucial crucial The

proceedings. proceedings. t come within a ground of of a ground within come t is an entry after DHS DHS after entry is an

arious forms of immigration immigration of forms arious for relief. for ” or being “deportable.” “deportable.” being ” or —not whether the person was admitted was person the whether —not instead of removal the United States, but that was still not not still was that but States, United the

includes a person coming into the United States States United the into coming person a includes Chapter 1 inadmissible system is the difference between entry between difference the is system mmigrants in Immigration Court Immigration in Immigrants Removal Defending Defense: In many instances, this case law is still the guide for the guide law is this still case instances, many In Because he had made an entry, he was placed in deportation in deportation placed was he entry, an made had he Because into the United States United the into . . the United States for years. for States the United in lived have they if —even s person faces removal proceedings, the main concern becomes becomes concern the main proceedings, removal faces s person thi Proceedings before IIRIRA before Deportation Proceedings and Exclusion the government will likely prevail prevail likely will government the means status no have they fact the because

IIRIRA case law. IIRIRA The INS INS The in 1990. inspection without States United the entered and Sam Mel § 1.6 § 1.6 ch people frequently were paroled into paroled were frequently people ch , whether the person faced the grounds of deportation or exclusion depended on depended exclusion or of deportation grounds the faced , whether person the or seek relief seek or Example: arrested Mel in April 1996. 1996. in April Mel arrested proceedings and the INS had to prove that he came within a ground of deportation. deportation. of a ground within came that he to prove had INS the and proceedings in 2000, In effect. in were proceedings removal when in 2000, Sam arrested INS The the or inadmissibility of grounds the to subject would be Sam whether determining an made he whether not admitted, was Sam is whether test the grounds of deportability, IIRIRA —applications a person can file to gain status or the right to stay in the United States—and States—and United the instay to right the or to status gain file can person a —applications inspection. inspection. Onlydeportation. of grounds the faced an entry completed who law, a person the old Under exclusion. of grounds faced by INS admission refused were who people inspection. without entered who to people happens what changed IIRIRA terms, practical In INS former the entry, an made had they because advantage: had an those people IIRIRA, Before enter who people proceedings, removal current had to prove Under deportable. that they were considered are they inspected, not been have they since a disadvantage: have inspection without admission seeking be still to do no that they prove to have they that means this framework, current inadmissibility An entry is different from an admission. Entry admission. from an different is entry An does It not a inspection. without include person is who formally or with illegally, or legally pre- (Under admission. refused and entry of port or border the at inspectors (DHS) by stopped IIRIRA law, su Anstopped.) admission been had they because entry, an considered whether the person made an entry an made person the whether Before difference thedifference between old and the current In both these cases, once once cases, these both In Court cases started before April 1,1997 remain under the prior structure which had two types of two types had which structure the prior under remain 1,1997 April before started cases Court proceedings— exclusion and proceedings—deportation in helpful is went effect into IIRIRA before place in was that system the Understanding pre- understanding April before begun were that cases because Also, admissible. and isdeportable who establishing , it is useful proceedings exclusion or in deportation the system, old under continue 1, 1997 will framework. prior the to understand prior1997, the 1, which combined began on April IIRIRA under proceedings Removal that proceeding within though proceeding, single one into proceedings exclusion or deportation “ being with charged either is the noncitizen relief the person found already has judge The criteria. eligibility its own has each application criteria eligibility the on focus and we deportable or inadmissible There are no are v having on There based status. removability of on a charge eligibility for relief for eligibility Chapter 1 There nois real difference between the terms “ Chapters Temporary Protected States (TPS), nonimmigrantand visas. immigration applications, including adjustment of status, registry, the old amnesty programs, seeking admission. They are also relevant requirement The grounds of inadmissibility apply both at the border in and removal proceedings for persons programs, unlawful presence in Unitedthe States, terrorism, and certain crimes. government officials to gain benefit, a risk they will become depen inadmissible inadmissibility or deportability. whether the person came within groundsthe of exclusion deportation, or instead of grounds of exclusion. pre-IIRIRAUnder the law, grounds of inadmissibility referredwere asto “grounds exclusion.” of § 237(a). AlthoughINA §237(a). they are not something wouldone memorize, it is important to become familiar at with are the grounds of inadmissibility deportability of at INA grounds §212(a). The reference the statute regularly to determine whether particular a ground applies. You can become A August 2019 Immigrant Legal Resource Center removed admissible. person was deportable, and exclusion hearings, whichin person the had to prove that they were deportation hearings, whichin Immigrationthe and Naturalization Service (INS § 212(a). These grounds are alist of the reasons admissio an alien can berefused groundsThe of inadmissibility (formerly called grounds of exclusion) are contained INA in deportability will apply to those who have been admitted and withinare Unitedthe States. terrorism, and violating immigration laws, such as overstaying visa. a The grounds of deportable the from removed grounds of deportability are list a of reasons that an alien, who has been admitted, can be For this reason, you might still come across deportation cases and OSCs in current practice. deportationprior case is remanded after an appeal, that person is still in deportation proceedings. 122, “Notice Applicant to for Admission Detained for Hearing.” If oldan case reopened,is or a OSCsample included is A at proceedings will have received citizen had proveto they were not excludable exclusionin proceedings. A person in deportation Act (INA). Act groundsThe deportability of DVOCACY DVOCACY inadmissibility. hewhich had the burden of proving that did he not come within a ground of entry. Because hadhe not been admitted, Sam was placed in removal proceedings in from the United States. ” If” you read court opinions about cases that started before 1997, they will refer to 2, 3and 4discuss grounds of inadmissibility deportab and [Until April 1,1997, they were contained in former Section Generally, the INS the had burden of proving someone was deportable while the non-

. Groundsdeportabilityofcrimes, including certain include aggravated felonies, § 1.7 T . These grounds include health IP Read the INA (the (the INA the Read : United States. The Grounds of Inadmissibility and Grounds of Deportability and of of Inadmissibility Grounds Grounds The

ppendix A ppendix an Order an Show to Cause (OSC) instead of Noticea Appear. to A

are containedare in Within thisframe A person who comes within ground a deportability of is A person who comes within a ground of inadmissibility is “Act . In exclusion proceedings, personthe received Form I- ”) as -related concerns, criminal grounds, lying to Chapter 1 Chapter grounds inadmissibilityof ” and “grounds of Section well as this ma work, were there two types of hearings:

s to establish eligibility many to for s 237(a) of the Immigration Nationalityand nual. dent on government welfare ilitydetail in . Practitioners should 241(a) of the INA]. The

) had ) n to and/or and/or to to prove the the prove to

Chapter 1

.

For 23 August 2019 August pursuant to a to pursuant The evidence evidence The

themselves 21

find nd not inadmissible 8 CFR § 1240.8(c). 245, bear the burden of of burden the bear 245, clearly and clearly beyond a doubt

Murphy v. INS. Murphy

, 259 F.3d 1176 (9th Cir. 2001). Cir. (9th 1176 F.3d 259 , nd to consult the wording of various provisions provisions various of the wording consult to nd

Chapter 1

Burdens of Proof 22 not inadmissible notas inadmissible charged. mmigrants in Immigration Court Immigration in Immigrants Removal Defending Defense: Chavez v. INS - 240.8(c); see also see also 8 CFR § 1240.8(c); § 1.8 § 1.8

Lopez

” or, ” or, applications (first filed before EOIR) cannot be used to establish alienage. establish to used be cannot EOIR) before filed (first applications

lawfully in the U.S. pursuant to a prior admission or are or admission a prior to pursuant U.S. the in lawfully burdeninadmissibility the proof under of grounds in § 212(a) INA for noncitizens rules General

1. The burden of proof of alienage falls on the government the on falls alienage of proof of The burden “clearly and beyond doubt entitled to be admitted a admitted to be entitled doubt beyond and “clearly are they that under section under section 212 prior admission. by that theyclear arepresent and inevidence, lawfully the convincing U.S. 24 1. 2.

19 I. & N. Dec. 173 (BIA 1984). (BIA 173 Dec. N. & 19 I. 54 F.3d 605 (9th Cir. 1995) (holding that the burden of proving alienage always remains on the on the remains always alienage proving of burden the that (holding 1995) Cir. (9th 605 54 F.3d after or on applications) (affirmative USCIS before filed applications withholding and asylum for Except see also F.3d; 54 , INS v. Murphy

Burden of proof is a complex and confusing subject, largely because the burden of proof shifts shifts proof of burden the because largely subject, confusing and a complex is proof Burden of they in which situation the and involved, person the of status the on depending more in with dealt are which of proof, burdens differing the of synopsis brief is a following The detail inin subsequent thechapters context of formsspecific grounds specific ofand removability removal. from of relief A. Defensive Defensive 1995. 4, January noncitizens in removal proceedings, once alienage has been established, the burden of proof shifts shifts of proof burden the been established, has alienage once proceedings, removal in noncitizens of Matter also see § 291; INA entry. manner of and place, time, the to show to noncitizen the . Benitez 24 21 22 23 You might find You says. statute what the about understanding own form your to important isIt is also statute the of Interpretation statute. actual the of wording the about thinking by arguments informed by case regulations. law and agency familiar with where to find things in the statute a statute the in things find to where with familiar regularly. Once alienage has been established, the noncitizen must prove by clear and convincing evidence evidence convincing and clear by prove must noncitizen the established, been has alienage Once theythat are § 240(c)(2), noncitizens who are subject to the grounds of inadmissibility, which which inadmissibility, of theto grounds subject are who Undernoncitizens § 240(c)(2), INA Section under status of adjustment for applying are who those includes proving either: either: proving B. government because a it is jurisdictional matter). For noncitizens found within the United States without being admitted or paroled, the government government the paroled, or admitted being without States the United within found For noncitizens alienage. proving of burden the bears required to prove alienage is not specified by regulation. Even if the person has submitted an an submitted has theif person Even by regulation. specified not is alienage prove to required an to be held be cannot that application in information the removal, from relief for application 8 CFR alienage. of admission § 1240.11(e). entitled to be admitted to the U.S. and are U.S. the to admitted to be entitled Chapter 1 upon reasonable, substantial probative and evidence.” Rivens. ground inadmissibility of a chargedwith permanent resident is 240(c)(3)(A); 8 CFR§ 240(c)(3)(A); 8 of proving,convincingandof evidence clear by noncitizensFor who are subject to the grounds deportability,of governmentthe Under Under Supremethe Court case, § 240.And t returning residentcharged an “arriving alien as arrivingas aliens have more rights than other noncitizens. example, For admission” under IIRIRA,permanent residents who are subject to the grounds of inadmissibility Despite generalthe rule governing burdenthe of proof for those deemed “ In Matter ofIn Vivas , the respondent was a government’ case for deportability, noncitizenthe may requiredbe to submit evidence that rebuts the C. the invented by Congress can override partyboth moving government the is the resident is to deprived be of his status, the governmentwhich proceedinga only in may in do so them. that they have the right to a and full fair hearing and the right confrontto the evidence against heldCourt thatLPRs returning from a abroadtrip are entitled to process due protections, meaning are covare andrules, case governinglaw the establishment deportabilityof based criminalon a conviction, conviction; and (2) that the conviction triggers a ground deportability of or inadmissibility. Th convictions. The government bears the burden of proving both (1) the existence of criminal a specificgoverning rules deemedbe clear, to Furthermore, in Kwong Hai Chew Colding v. , 31 30 29 28 27 26 25 August 2019 Immigrant Legal Resource Center Woodby difference between In Matter ofIn Vivas , the required standard of proof. 1 385 U.S.385 276(1966). Id. Kwong Landon v. Plasencia, 459 U.S. 21(1982). Kwong 25 I. & N. Dec. 623 (BIA 2011); also see

6 I. & N. Dec. 68 (BIA 1977). § § ; INA In Kwong In ered extensively in 25 §237 INA grounds deportability of under in proof the burden The 2. stitutionally decisioncon is based , 344U.S. , 344U.S.

240(c)(3)(A). grounds permanentLawful residents and the burden of proof under the inadmissibility he governmenthe s case if the evidence in question withinis noncitizen the , the Supreme Court

31 unequivocal “clear and convincing” “clear,and unequivocal and convincing,” since the but however, the BIA held that where the government has made a

§ 1240.8(a). “No decision ondeportability shall be valid unless it is based

the type of evidence required to prove the existence of criminal Chapter 5 Chapterand Chapter 7 bears the burden of proof in removal proceedings where lawful a

Woodby v. INS, v. Woodby and convincing evidence. convincing, and It

additionally se constitutionalse protections.

Kwong Hai Chew v. Colding344U.S., 590(1953). lawful and bears the burden proof. of and was and decided bythe Supreme Court, it should be Chapter 1 Chapter at theat, th noncitizen deportable. is 26 ” has” the right a to removal hearing INA under and Landon and Plasencia v. , 30 permanent resident whoposedlypermanent sup resident obtained his held that if a returning lawful permanent returninga lawful if held that the standard the for proving deportability was .

29 In addition, In INA §240(c)(3)(B) contains i s not clear whether there is a as anas arriving alien. Matter of

’s knowledge’s control. and 28 under INA §235(b)(2), a No statutoryscheme 27 applicants for the U.S. Supreme the INA INA

bearsburden the prima facie facie prima

ese Chapter 1

, s ’ solely t statutory statutory August 2019 August The Second Second The In other words, otherIn words, Francis v. v. Francis 34 .

s decision ins decision te different from the the from te different that of the witness the of that evidence of evidence

elief 33 prima facie facie prima Adefemi v. Ashcroft v. Adefemi ability.

test the court had to affirm the BIA the affirm to had court the ” test s spouse was actually actually was s spouse ’

over over the how clear and convincing, Courts ondent to that evidence. ondent rebut d Cir. 2006). d Cir. , 17 I. & N. Dec. 30 (BIA 1979). 30 (BIA Dec. N. & 17 I. , Chapter 1 government produced a witness claiming that the the that claiming a witness produced government n Under these circumstances, the BIA affirmed the the affirmed BIA circumstances, these . Under Practitioners should argue argue should Practitioners that in the view of when interpreting the clear and convincing or clear, or clear, convincing and clear the interpreting when 36 mmigrants in Immigration Court Immigration in Immigrants Removal Defending Defense: The 39 (2 or establishing deport or establishing

to the respondent substantial evidence substantial hifts to the resp to the hifts “

’ Circuit Eleventh the with disagreed expressly s silence can be used against him. against used be can s silence

35 Matter of Carrillo

the respondent belonging belonging Amendment right to remain silent. remain to right Fifth his of Amendment assertion s ly Adefemi v. Ashcroft v. Adefemi any rational trier of fact would conclude that the proof did not rise to the the to rise not did proof the that conclude would fact of trier rational any see also – 138 131, F.3d 442 , There is. There a in conflict the Circuit . According to the Second Circuit, the courts must reverse a finding of of a finding must reverse the courts Circuit, to Second the . According ases document that contained contained that a document of the use affirmed court the Circuit, Eleventh the In the BIA affirmed that once the government submits submits government the once that affirmed the BIA 32 rather than than rather , The burdenfor r applications proof in of discretionary

. .

Id 20 I. & N. Dec. 238 (BIA 1991). (BIA 238 Dec. N. & 20 I. ; Guevara of Matter 2004). Cir. (11th 1029 1022, 386 F.3d Gonzales v. Francis

and that she had never met never she had and that immigration court’s decision finding the respondent deportable. Similarly,deportable. respondent of the in finding Matter decision court’s immigration Guevara scheme as well as BIA precedent, courts of appeal should follow the reasoning in reasoning the follow should appeal of courts precedent, BIA as as well scheme Gonzales where a noncitizen is subject to the deportability grounds, the government has to have submitted submitted have to has government the grounds, deportability the to subject is noncitizen where a of burden the has then the noncitizen which of deportability, proof credible convincing, clear and the noncitizen’ before rebutting, based on the respondent’ on the based also held, however, that the government cannot meet its burden of proof its burden meet cannot government the that however, held, also ofMatter Guevara deportability, the burden of proof s proof of burden the deportability, 36 32 33 34 35 residence through a U.S. citizen spouse. citizen a through U.S. residence birth certificate alleged certificate birth Circuit courtCircuit c Francis v. Gonzales in Francis Circuit, unequivocal and convincing standard f standard convincing and unequivocal D. Adefemi v. Ashcroft v. Adefemi “ where deportability evidence.” convincing and clear level of decision unless there is no reasonable basis for that decision. that for basis reasonable is no there unless decision or clear, unequivocal, and convincing standard for establishing deportability should be should deportability establishing for standard convincing and unequivocal, or clear, interpreted. and convincing clear by offense a firearms for deportability establish to ambiguities several that theevidence, reasoning under Burden of proof also comes up in the context of applications for relief from removal. If removal. the from relief for applications of context the up in comes also proof Burden of permanen lawful a for inadmissibility or deportability establishes successfully government may be eligible eligible be may client your if to determine is process hearing removal the in step next the resident, relief. that for apply so to if and removal, from relief of form some for qui is removal from relief for eligibility determining for proof of burden The should and not inadmissibility or deportability be confusedestablishing for proof of burdens with them. Chapter 1 person wins because ICE can Everyone agrees that if it is vague ICEand has the burden to prove the person deportable, the becomes an issue for those that have been convicted of a“ succeeded in meeting their burden proof of where the record of conviction vague.is This For applicants for relief that are convicted of crimes, courts differ on whether an applicant has Furthermore, 8CFRnoncitizen: §1240.8(d) that a states 37 shows they do not have it and cannot reasonably obtain it. corroborates otherwise credible testimony, that evidence must Where the immigration judge determines that applicantthe should provide evidence that required by regulation,law, the or instructions thein application INAform. § 240(c)(4)(B). In addition, the applicant submit must information or documentation supportto the application, as INA §240(c)(4)(A): Under August 2019 Immigrant Legal Resource Center showeligibility for relief? gonadotropin. What happens in such cases where personthe is trying to meet their burden to notand drug a that is not on the federal controlled sub immigration purposes. But ifwhat the record vagueis just and says “ If aperson gonadotropin), which would not trigger ground a of removal under our federal immigration law. purposes, someand which of only appear on California schedules drug (e.g., chorionic ecstasy or methamphetamine), which would be controlleda substance conviction for immigration substances— example of divisible statutes are California drug statutes. They are divisible between the different relating thatto conviction does not specify which piece of the divisible statute they violated. One inadmissibility and deportability, see benefita can theirmeet burden of proof. For complete a discussion criminalof grounds of vague ofrecord conviction an is issue in case,the courts onconflicted on whether applicantan for some controversy, and case law is still developing on this issue. Particularl What this means thein context of applications for relief from removal has been the subject of § § 240(c)(4)(B). preponderance of the evidence that such grounds do not apply. application for relief may apply, the alien haveshall the burden of proving bya evidence indicates thatone more or of groundsthe for mandatory denial of the benefit privilege or and that it should be granted in the exercise the of discretion. If … [S] (i) establish that the a An applying alien for relief protection or from removal the has burden proof of to (ii)

’s record of conviction says “

alien meritsa favorable exercisediscretion.of with respectof anyto formgranted relief that is exercise the in discretion,of the that satisfies the applicable eligibility requirements; and some of which are substances that also are onfederal drug schedules (e.g., like hall have burdenthe establishingof that orhe she is

lien ’ t prove that “ that t prove —

Chapt ecstasy, a controlledsubstancea er 5 er Chapter 1 Chapter ” it is a controlled substance conviction for .

stances schedule,like chorionic

37 divisible

be provided unless the applicant

” ” eligible for any requestedany eligible for ” ” refers methamphetamineto statute, but the record a controlleda substance” y, caseswhere in a

? Chapter 1

relief

to August 2019 August The Young Marinelarena . Marinelarena Other Circuit Circuit Other 38 . Moncrieffe v. Moncrieffe

40

, 706 F.3d 535 (4th Cir. Cir. 535 (4th F.3d 706 , cuits that do not have have not do that cuits ify the from noncitizen 584 F.3d 1288 (10th Cir. 2009). Cir. (10th 1288 F.3d 584

Holder If the government fails the If government

42 v. when arguing issues of issues arguing when Moncrieffe Holder,

for contesting removability and removability contesting for v.

, 570 U.S. 254, 133 S.Ct. 2276 (2013). The (2013). 2276 133 S.Ct. 254, 570 U.S. ,

Mondragon

in California still is eligible to adjust status or or status adjust to eligible is still in California But see because their convictions are not not are convictions their because Marinelarena ” conviction and records, that if” conviction the reviewable Chapter 1 Chapter 7 See Chapter

” includes both substances on the on substances both ” includes substance controlled mmigrants in Immigration Court Immigration in Immigrants Removal Defending Defense: , 551 F.3d 113 (2nd Cir. 2008); 2008); Cir. (2nd 113 551 F.3d , v. Mukasey Martinez 2016); Cir. “

to relief from removal on the same grounds. grounds. same the on removal from to relief The Ninth Circuit held that this burden included a included that this burden held Circuit Ninth The 990 (9th Cir. 2012). Cir. (9th 990 - 39 is controlling on the issue of burden of proof, finding that under that under finding of proof, burden issue of the on controlling is

41 . . d 976, 989 a controlled substance a controlled , 757 F.3d 712 (7th Cir. 2014); Garcia 2014); Cir. (7th 712 F.3d 757 , F.3d …, (9th Cir., July 18, 2019), 2019 WL 3227458. WL 2019 2019), 18, July Cir., (9th …, --F.3d LPR cancellation. Deportable LPR Lucy who was convicted of possession of possession convicted was who Lucy LPR Deportable cancellation. LPR Moncrieffe st (1 526 F.3d 819 , , , 569 U.S. 184 (2013). 569 U.S. , “a controlled substance” in California still can apply for LPR cancellation. cancellation. LPR for apply can still in California substance” “a controlled Undocumented Marge whose record shows only that she was convicted of convicted was that she only shows record whose Marge Undocumented , 25 I&N Dec. 721 (BIA (BIA 721 Dec. 25 I&N , Lanferman of Matter also see 2012); Cir. (9th 976 F.3d 697 , F.3 , 697 , 25 I&N Dec. 721 (BIA (BIA 721 Dec. 25 I&N , Lanferman of Matter also see 2012); Cir. (9th 976 F.3d 697 , ., 763 F.3d 348 (3rd Cir. 2014). 2014). 348 Cir. 763 (3rd ., F.3d Holder Lynch

Thus, practitioners should continue to utilize to utilize continue should Thus, practitioners

v. Moncrieffe 43 v.

g offense and thus does not bar a noncitizen from establishing eligibility for relief relief for eligibility from establishing a noncitizen bar not does thus and g offense sale of sale y Gen , an inconclusive record of conviction does not establish a conviction of a of a conviction not establish does conviction record of , an inconclusive that a vague record of conviction is not enough to establish eligibility for relief where where relief for eligibility to establish is enough not of conviction record a vague that trigger deportability or inadmissibility which would disqual which or inadmissibility deportability trigger decisively convictions for a federally controlled substance. controlled federally a for convictions decisively federal schedules and some that are not. As such, the conviction does not bar Lucy or Lucy bar not does conviction the such, As not. that are and some schedules federal under relief for applying from Marge apply for non- for term generic the cases, both In Example: “ of possession holds that a vague record is sufficient for a person applying for relief to show that they that they show to relief for applying a person for sufficient is record a vague that holds Descamps v. Holder v. andDescamps (2013) , 569 184 U.S. Sanchez

Sauceda arise in various chapters of this manual. chapters in arise various Young v. Holder v. Young Holder v. Young Barr v. Marinelarena v. Holder Moncrieffe See Young v. Holder v. Young

Supreme Court stated that whether a conviction has immigration consequences is clearly a legal legal a clearly is consequences immigration has conviction a whether that stated Court Supreme this for exists issue. of proof” no “burden therefore and question, : Young cases, Court Supreme U.S. important by two supported is reasoning This Holder establish that a conviction results in deportability establish that for for in results orexample an a inadmissibility, conviction deportability subsequently cannot that conviction then turpitude, moral involving a crime or felony aggravated bars the of one for a basis as used be 2013); 2013); 40 41 42 43 Syblis v. Att ’ rulings in line removability for in proving both of proof, burdens Issues around eligibility and establishing 38 39 Courts have held that held have Courts Moncrieffe disqualifyin from removal. cir in removal from relief for eligibility determining for of proof burden Young v. Holder v. in Young decision its prior overruled Circuit Ninth the 2019, JulyOn 18, Barr v. proof. of burden met their have will Young v. Young in holding Holder the under operated Circuit Ninth the 2019, July Until rule said conviction that a of proving the burden bear Respondents bar: a potential raises the conviction does not eligibility for relief from removal. from relief for eligibility requirement that the respondent produce all “ all produce respondent that the requirement 2012). 2012). has has not respondent hermet the burden. inconclusive, is record reviewable Chapter 1 deportability due ato conviction is discussed Chapterin 5 9 Chapter August 2019 Immigrant Legal Resource Center

for a

discussionrelief. of

The categorical approach and issues establishingof Chapter 1 Chapter

.