Burden of Proof in Immigration Removal Proceedings

In any court trial, there is a concept known as the burden of proof which is the obligation of a party in a legal action to provide evidence to prove or disprove a disputed fact.

In immigration removal proceedings, the government is bringing a court action against noncitizen to convince an immigration judge to issue an order to remove also known as deport the noncitizen from the United States.

A removal proceeding can be brought against a noncitizen who is legally present in the United States, but has committed a violation of an immigration law exposing the noncitizen to losing his status and subject to a removal order. A noncitizen in this situation is considered a deportable noncitizen or alien. We discuss removal proceedings against noncitizens who are deportable including claims for relief from removal here.

A removal proceeding can also be brought against a noncitizen who is not legally present in the United States where the government is attempting to obtain a removal order based on the fact that the noncitizen has no legal right to be present in the United Sates. A noncitizen in this situation is considered a removable noncitizen or alien. We discuss removal proceedings against noncitizens who are removable including claims for relief from removal here.

In immigration court hearings there are typically three burden of proof standards that may apply.

• Preponderance of the evidence is a lower standard of evidence which is when a party proves that a fact is more probable than not. This can also be seen as when a party is able to prove that there is a greater than 50% chance that a claim is true.
• Clear and Convincing Evidence is a mid-level standard of evidence that leaves a fact finder with a firm belief or conviction that it is highly probable that the actual claim is true.
• Clearly and Beyond doubt is highest standard of proof where a party must eliminate all doubt that a claim is true.

In cases involving deportable noncitizens, the government known as the Department of Homeland Security, “DHS” bears the burden to prove by clear and convincing evidence that the noncitizen is deportable.

In cases involving removable noncitizens, once DHS establishes that the noncitizen is not a citizen of the United States, the noncitizen bears the burden to establish by clear and convincing evidence that he is lawfully in the United States pursuant to a prior admission. Otherwise, the noncitizen must provide that he is clearly and beyond a doubt entitled to be admitted to the United States and is not disqualified or inadmissible.

Finally, in cases where either the noncitizen may be removable or deportable, the noncitizen bears the burden in establishing that he is eligible for an immigration benefit or privilege and that it should be granted in the exercise of discretion. Furthermore, if there is evidence that the noncitizen may be disqualified from an application for relief from removal under a mandatory ground for denial, the noncitizen has the burden of proving by a preponderance of the evidence that such a mandatory ground for denial does not apply to his case.

If the government has the burden to prove a noncitizen is deportable and fails to meet its burden will result in the government failing to secure a removal order.

If it is the noncitizen who is required to meet his burden that he is legally authorized to be present in the United States or that he qualifies and is eligible for a claim of relief from removal,  and fails to meet his burden, will likely result in the noncitizens removal from the United States.

Since it is not always clear who bears the burden in a removal proceeding, it is critical to seek the assistance of an experienced attorney to help against the government attempting to remove a noncitizen from the United States.