Safe Havens

 

In deportation proceedings, the government must prove a noncitizen’s deportability by clear, convincing and unequivocal evidence.[54]  “The difference[s] between the ‘clear, unequivocal and convincing’ standard and the ‘clear and convincing’ standard are unclear and the Woodby standard may be considered constitutionally mandated.”[55]  This standard applies to all elements of a ground of deportability.[56]

 

            “Matters of doubt should be resolved in favor of the alien in deportation proceed­ings.  Fong Haw Tan v. Phelan, 333 U.S. 6 (1948).”[57]  Deportation statutes must be narrowly construed in favor of noncitizens.[58]

 

            In Cruz-Garza v. Ashcroft,[59] the Tenth Circuit applied the rule of Woodby v. INS[60] to the question whether a conviction had been eliminated by post-conviction relief, so it no longer triggered a ground of deportation.  The court held that the government must establish by clear and convincing evidence that the conviction was still in existence for immigration purposes before a valid removal order could be premised on it.

 

            The INS had to prove by “clear and convincing evidence” that petitioner was subject to removal,[61] i.e., that his conviction fell within the aggravated felony ground of deportation and thus supported removal under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).[62]

 

            The BIA never acknowledged this burden. On the contrary, as the quoted passage reflects, the BIA approached the case as if petitioner bore the burden of disproving that his conviction qualified him for removal. See also id. at 2 (finding petitioner “failed to establish that his conviction was vacated on the basis of a procedural or substantive defect in the underlying proceedings.”).

            While formal error regarding the ascription of the burden of proof can, in itself, undermine the validity of a BIA decision, see Sandoval, 240 F.3d at 581; Murphy v. INS, 54 F.3d 605, 610, 612 (9th Cir. 1995), that is not the basis of our disposition here. Rather, as explained below, we conclude in more direct fashion that the evidence of record is legally insufficient to satisfy the INS’s stringent burden of proof and, thus, that the order for removal must be reversed. See Sandoval, 240 F.3d at 583 (reversing removal order where record relating to reduction of alien’s initially qualifying conviction to a non-qualifying offense was insufficient to support removal under clear and convincing evidentiary standard); see also Cortez-Acosta v. INS, 234 F.3d 476, 480-83 (9th Cir. 2000) (reversing removal order that had been based on suggestive but inconclusive indications of alien’s removable activity (assisting illegal entry of another alien), “because the weakness of the administrative record does not satisfy the stringent [clear and convincing] evidentiary standard for deportation”).[63]

 

The court indicated that the record before it was susceptible to two inferences: (a) that the felony conviction had been reduced to a misdemeanor, on the basis of an error in the original proceedings, so that it would no longer constitute a felony for immigration purposes, or (b) that the conviction had been reduced solely on the basis of considerations that arose after the conviction first came into existence, such as rehabilitation or to avoid immigration consequences, and would therefore still constitute a felony for immigration purposes.

 

            The court concluded:

 

Given the vagaries of the evidentiary record and, more importantly, the plain implication of the state statute authorizing reduction of petitioner’s felony conviction to a Class B misdemeanor, we hold “that the INS did not prove by clear, unequivocal, and convincing evidence that [petitioner] was convicted of [a qualifying felony under § § 1101(A)(43) and 1227(a)(2)(A).]” Sandoval, 240 F.3d at 583. “Thus we are compelled to grant the petition for review, because the weakness of the administrative record does not satisfy the stringent evidentiary standard for deportation.” Cortez-Acosta, 234 F.3d at 483.[64]

 

Therefore, the court granted the petition for review, reversed the BIA’s decision, and vacated the order for petitioner’s removal.

 

            The Eleventh Circuit had previously applied the same standard to rule that evidence of a conviction was insufficient to establish a firearms conviction ground of deportation.[65]  The INS had relied exclusively on a single piece of evidence in support of its charge that Adefemi was deportable on the basis of a firearms conviction.  This was a two-sided, preprinted document that would be colloquially termed a traffic “ticket.”  On the front appears a uniform citation form used to charge drivers with moving violations.  On the reverse is boilerplate language for use in recording several types of action taken in the City Court of Atlanta, such as the receipt of a plea or the imposition of sentence.

 

The form provides no means of discerning Adefemi’s actual plea in this case: there is no indication that he amended an initial plea of not guilty to one of guilty, nor has anything been written in a space provided for stating the charge to which Adefemi, if he did enter a guilty plea, in fact admitted. Consistent with this ambiguity, none of three boxes printed next to each of three possible pleas--guilty, not guilty, and “nolo cont’d”--have been checked in a separate section of the form.

 

            Below the sections bearing Adefemi’s signatures is another section titled “Disposition and Sentence,” in which the word “Probation” has been rubber- stamped. Still lower, in a separate section, the number “330.00” has been written on a space for designating a “fine.” The next line appears to state that a term of confinement shall be served should payment be defaulted. However, the portion of the form titled “Disposition and Sentence” has been left entirely blank apart from the “Probation” stamp and a second stamp that reads “State Case.” Significantly, nothing has been written in spaces specifically reserved for identifying the “Sentence: Amount Fine/Forfeiture $” and the number of “Days (Months) probated.” The failure of the Atlanta City Court to complete these sections makes it difficult to interpret the meaning of the “Probation” stamp, since the imposition of a probationary sentence would seem to require that a term of probation be set. [Footnote omitted.]

 

            In the absence of additional evidence by which the INS might have clarified the meaning of the form, we do not think this document could allow a reasonable fact finder to conclude that the INS had shown any conviction by clear and convincing evidence. Our conclusion rests on the highly tenuous nature of any inferences drawn from what is in essence nothing more than the front and back of a traffic ticket, with a great many blanks left unfilled. [Footnote omitted.]  While the document does indicate a fine of $330, it fails to specify the basis for this penalty. Nowhere does it explicitly indicate the fact of conviction, the offense for which any conviction was entered, or any specific charge to which Adefemi may have pled guilty.

 

            Even were we to assume that the clerical stamp reading “Probation” and the reference to a fine are evidence of some kind of conviction, we do not think it can be said that they are clear and convincing evidence of conviction of a firearms offense. The fact that the front side of the document lists such an offense does not mean Adefemi pled to or was convicted of that offense, since he may well have pled guilty to another, lesser offense. The reverse side simply fails to offer any clear guidance as to what this offense may have been.

 

            In sum, we think the “clear and convincing” evidentiary standard applicable in deportation proceedings requires something more than this ambiguous ticket before an individual may be “compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification.” Woodby, 385 U.S. at 285. We also think a reasonable factfinder would have to conclude that the INS has not shown by clear and convincing evidence that Adefemi was convicted of a firearms offense.[66]

 

The court therefore reversed the decision of the BIA and remanded the case for further proceedings consistent with its opinion.

 

            The Seventh Circuit, as well, has applied this standard to the question of proof of a conviction to justify deportation.[67]

 

“[I]t is incumbent upon the Government in [deportation] proceedings to establish the facts supporting deportability by clear, unequivocal, and convincing evidence.” Woodby v. INS, supra, 385 U.S. at 277, 87 S.Ct. at 484; Garcia v. INS, 31 F.3d 441, 443 n.1 (7th Cir.1994).  Where, as here, the Board finds that the INS has met that burden, it is our task to consider whether the deportation order is “supported by reasonable, substantial, and probative evidence.” 8 U.S.C. § 1105a(a)(4). See Woodby, 385 U.S. at 282-83, 87 S.Ct. at 486; Rosendo-Ramirez v. INS, 32 F.3d 1085, 1087 (7th Cir.1994).[68]

 

Because the consequences of deportation are so harsh, the government must bear the burden of showing deportability by clear, convincing and unequivocal evidence before removal will be ordered.

[54] 8 C.F.R § 242.14(a) (1997); 8 C.F.R. § 1240.8(a) (as amended by 68 FED. REG. 9824, 9839 (Feb. 28, 2003); Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483 (1966) (requiring “clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true”); Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir. 1985); Hernandez-Garza v. INS, 882 F.2d 945 (5th Cir. 1989) (reversing deportation order where smuggling “for gain” had not been established by Woodby v. INS, 385 U.S. 276 (1966) standard); Murphy v. INS, 54 F.3d 605 (9th Cir. 1995) (reversing deportation order based on questionable hearsay); Gameros-Hernandez v. INS, 883 F.2d 839 (9th Cir. 1989). But see 8 U.S.C. § § 1229a(c)(2)(B), (c)(3)(A); 8 C.F.R. § 1240.8(c); H.R. CONF. REP. No. 828, 104th Cong., 2d Sess. at 212 (1996)(providing for a “clear and convincing” standard).

[55] I. Kurzban, Kurzban’s Immigration Law Sourcebook, p. 288 (2004).

[56] E.g., Matter of Pichardo, 21 I.  & N. Dec. 330 (BIA 1996) (where document offered to prove fire­arms conviction does not specify that weapon was a firearm, INS failed to meet burden even where respondent testified during removal hearing he used a gun); Matter of Tiwari, 19 I. & N. Dec. 875 (BIA 1989), modified Matter of Tiwari, 20 I. & N. Dec. 254 (BIA 1991) (government had burden of proof under Woodby standard in alien smuggling case under former INA § 241(a)(13) to prove offense was committed “for gain”).

[57] Matter of G, 9 I. & N. Dec. 159, 164 (AG 1961).

[58] Rosenberg v. Fleuti, 374 U.S. 449, 459 (1963); Bonetti v. Rogers, 356 U.S. 691, 699 (1958); Barber v. Gonzalez, 347 U.S. 637, 642-43 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975); Matter of Chartier 16 I. & N. Dec. 284, 287 (BIA 1977).

[59] Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. Feb. 2, 2005) (Utah conviction of attempted theft by deception, a third-degree felony, with a suspended sentence and a term of probation, was not sufficiently proved to establish a ground of deportation, because the record of post-conviction proceedings did not establish with sufficient clarity and certainty that the conviction was still in existence).

[60] Woodby v. INS, 385 U.S. 276 (1966).

[61] INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A).

[62] See Evangelista v. Ashcroft, 359 F.3d 145, 149-50 (2d Cir. 2004); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003).

[63] Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1130 (10th Cir. Feb. 2, 2005).

[64] Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1132 (10th Cir. Feb. 2, 2005) (footnote omitted).

[65] Adefemi v. Ashcroft, 358 F.3d 828 (11th Cir. Jan. 29, 2004), vacating and withdrawing previous opinion, 335 F.3d 1269 (11th Cir. June 30, 2003) (BIA could not reasonably have concluded that government showed by clear and convincing evidence that noncitizen had been convicted of firearms offense, so as to be ineligible for 212(c) relief from deportation, where only evidence offered by government was traffic ticket that alleged unlawful possession of firearm, but contained many unfilled blanks, failed to specify basis for fine imposed, and did not explicitly indicate fact of conviction, offense of conviction, or charge to which alien might have pleaded guilty).

 

[66] Adefemi v. Ashcroft, 358 F.3d 828, 836 (11th Cir. Jan. 29, 2004), vacating and withdrawing previous opinion, 335 F.3d 1269 (11th Cir. June 30, 2003).

[67] Dashto v. INS, 59 F.3d 697 (7th Cir. 1995) (certificate of conviction that noncitizen had used handgun was not satisfactory proof of weapons charge for purposes of finding him ineligible for discretionary relief, since it was nothing more than clerk of court’s representation on what underlying court records reveal about nature of conviction, and there was no court record which confirmed that noncitizen had in fact used handgun in connection with armed robbery to which he pled guilty).

[68] Dashto v. INS, 59 F.3d 697 (7th Cir. 1995).