"DHS regulations specifically provide that the respondent has such a burden only "[i]f the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply." 8 C.F.R. 1240.8(d) (emphasis added). Thus, in a case where deportability is not at issue but eligibility for relief is, the regulations clarify that there must first be evidence that indicates that the offense may be an aggravated felony before the burden shifts to the respondent seeking cancellation of removal to establish that his or her offense is not an aggravated felony. Given the categorical approach to determining what state convictions constitute aggravated felonies, where an examination of the state statute does not indicate that the conviction may be an aggravated felony, the burden does not shift. Cf, e.g., Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) (in interpreting similar regulation that imposes burden on asylum applicant of proving by a preponderance of evidence that a mandatory bar does not apply if "the evidence indicates" that the bar applies, court required proof on both elements of the mandatory bar before the burden shifted to the respondent)."
Question: Who bears the burden of showing whether an aggravated felony conviction bars relief from removal?



A:
See Immigrant Defense Project brief on this subject at:
http://www.nysda.org/idp/docs/07_Yanez-Garciaamicusbrief.pdf



See also, National Immigration Project advisory ("The Burden of Proof to Overcome the Aggravated Felony Bar to Cancellation of Removal") posted on the NIP website at:
http://www.nationalimmigrationproject.org/CrimPage/Practice_Advisory_Bur...



Thanks to Manny Vargas