(B)   Categorical Analysis.  The categorical analysis, discussed more fully in Chapter 16, infra, including divisible statute analysis and minimum conduct analysis, is used to determine whether a conviction will trigger a conviction based ground of removal. 

 

(1)  Conviction Based Grounds.  While categorical analysis[280] and divisible statute analysis[281] apply regardless of whether a noncitizen is charged with a ground of inadmissibility or deportability, the result may differ because the DHS bears the burden of proof in the deportation context, while the noncitizen bears the burden in the inadmissibility context. 

 

                Example:  A noncitizen is convicted of burglary with intent to commit theft or any felony, and the issue is whether this offense is a crime of moral turpitude.  In deportation proceedings, the noncitizen wins because the government cannot show (a) that the conviction was for burglary with intent to commit theft vs. any other felony, and (b) that the term “any felony” includes only CMT offenses. 

In inadmissibility proceedings, the noncitizen loses because s/he cannot prove that the conviction was not for theft, as opposed to any felony.

 

(2)  Minimum Conduct Analysis.  In the burglary example above, the noncitizen in inadmissibility proceedings was inadmissible because s/he could not prove s/he had not intended to commit theft.  However, s/he was not inadmissible because the “any felony” language included offenses that could be considered crimes of moral turpitude.  Even in inadmissibility proceedings, the noncitizen has the benefit of the minimum conduct rule, which requires that where a statute cannot be further divided,[282] an immigration court must look to the minimum conduct proscribed under the statute to determine whether the noncitizen has been convicted of a crime that triggers a ground of removal.[283]  Because the minimum conduct punishable within the phrase “any felony” is not necessarily a CMT, the immigration court cannot hold that the noncitizen is inadmissible for conviction of a CMT.

 

(3)  Conduct Based Grounds.  Because there is generally no statute of conviction involved where a noncitizen is charged under a conduct based ground of inadmissibility based on an admission by the noncitizen,[284] “reason to believe” on the part of the DHS,[285] or some other test, the categorical and divisible statute analysis does not apply.  Counsel should examine what standards are required under the specific conduct-based ground to determine what is necessary to prove or disprove the applicability of that ground to the client.

[280] See § § 16.3-16.8, infra.

[281] See § § 16.9-16.14, infra.

[282] See § 16.14, infra.

[283] See § 16.8, infra

[284] See § 18.8, infra.

[285] See § 21.6, infra.

REMOVAL PROCEEDINGS " EVIDENCE " MOTION TO SUPPRESS " PRACTICE ADVISORY
Under certain limited circumstances, the immigration judge must grant a motion to suppress evidence of the noncitizens identity in removal proceedings. See Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1015"16 (9th Cir. Aug. 8, 2008) (the exclusionary rule applies in immigration court only to evidence seized in connection with a Fourth Amendment violation that is an egregious one in which a government agent deliberately committed the violation or did so by conduct a reasonable officer should have known would violate the Constitution); Orhorhaghe v. INS, 38 F.3d 488, 497 (9th Cir. 1994) (quoting Benitez-Mendez v. INS, 760 F.2d 907, 909 (9th Cir. 1983) (before taking an individual into custody, an immigration officer must be able to articulate objective facts providing a reasonable suspicion that the subject of the seizure was an alien illegally in this country.) (internal brackets omitted)); see also 8 C.F.R. 287.8(c)(2)(i) (2013) (requiring immigration officers to have a reason to believe that the person to be arrested . . . is an alien illegally in the United States.).

REMOVAL PROCEEDINGS " EVIDENCE " POLICE REPORTS ARE UNRELIABLE EVIDENCE
United States v. Johnson, ___ F.3d ___, 2013 WL 1188037 (8th Cir. Mar. 25, 2013) (police reports are unreliable as evidence that criminal conduct occurred).

REMOVAL PROCEEDINGS - RIGHT TO CROSS-EXAMINE
Malave v. Holder, ___ F.3d ___ (7th Cir. Jun. 26, 2010) (Immigration Judge failed to comply with respondents right to cross-examine witnesses by refusing to issue (or enforce) subpoena on witness who claimed marriage was fraudulent).

REMOVAL PROCEEDINGS " EVIDENCE " FIFTH AMENDMENT PRIVILEGE
Kastigar v. United States, 406 U.S. 441, 444-45 (1972) (the privilege against self-incrimination may be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.); Matter of Benitez, 19 I&N Dec. 173 (BIA 1984) (respondents are not entitled to a separate hearing on a motion to suppress evidence on grounds of a violation of the Fifth Amendment privilege against self-incrimination); Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988) (when a movant submits evidence that could provide a basis for excluding the evidence in question, the claims must be supported by testimony, implying that IJs must therefore allow respondents to testify in support of a motion to suppress, even if a separate suppression hearing is not required); Matter of Velasquez, 19 I&N 377, 379 (BIA 1986) (Since it is a crime to enter the United States without inspection, the IJ found the respondent had properly invoked the privilege.); see generally Legal Action Center, Practice Advisory, Motions to Suppress in Removal Proceedings: A General Overview, Part 4, pp. 26-27 (Oct. 12, 2011).

INADMISSIBILITY " PAULUS DEFENSE " SANDOVAL-LUA ARGUMENT -- PRACTICE ADVISORY
The issue is whether a respondent is eligible for adjustment of status when he has a 1995 conviction under California Health and Safety Code 11352(a). The Ninth Circuit concluded that a conviction under California Health and Safety Code 11352(a) was not categorically a controlled substance violation for purposes of INA 212(a)(2)(B)(i) because there are numerous substances in California that are not regulated by the Controlled Substances Act. Moreno v. Holder, 340 Fed.Appx. 408 (9th Cir. 2009); Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007). A respondent bears the burden to establish eligibility for relief when applying for adjustment of status. See 8 C.F.R. 1240.8(d). In Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130 (9th Cir. 2007), the Ninth Circuit originally examined this regulation and held that even in cases where the petitioner is applying for relief, and it is his burden to establish eligibility, the burden of proof is met when the petitioner produces an inconclusive record of conviction. In Sandoval-Lua, the petitioner was charged with a controlled substance offense under California Health and Safety Code 11379(a) and subsequently charged with removability under INA 237 (a)(2)(B)(i) (controlled substance offense) and INA 237(a)(2)(A)(iii) (aggravated felony). Id., 499 F.3d at 1124. Accordingly, he bore the burden of proof to establish his eligibility for cancellation of removal. 8 C.F.R. 1240.8(d); Sandoval-Lua at 1127. However, the petitioners record of conviction did not conclusively indicate whether his conviction contained all the elements that constituted an aggravated felony. Id. at 1130. Nonetheless, the Ninth Circuit concluded that the petitioner had carried his burden to establish by a preponderance of the evidence that he was not necessarily convicted of an aggravated felony and thus eligible for cancellation of removal, and that ambiguity in the record was sufficient to meet that burden. Id. at 1132. The BIA disagreed with Sandoval-Lua in Matter of Almanza-Arenas, 24 I. & N. Dec. 771, 774 (BIA 2009), and held that it would not apply Sandoval-Lua to applications for relief filed after the May 11, 2005 enactment of the REAL ID Act. However, regardless of the filing date of the application for adjustment of status, the Ninth Circuit has rejected Matter of Almanza-Arenas and has held that Sandoval-Lua continues to apply to post-REAL ID applications for relief. Rosas-Castaneda v. Holder, 630 F.3d 881 (9th Cir. 2011). The court also held that an Immigration Judge does not have the authority to require a noncitizen to supplement the record of conviction where the record is otherwise inconclusive. In Rosas-Castaneda, the criminal complaint and plea agreement were entered into evidence. The immigration judge found that the record was inconclusive and ordered Rosas-Castaneda to produce a transcript of his Arizona criminal court plea hearing. Id. at 263. The Ninth Circuit found that the judge did not have the authority to require the production of corroborating evidence where the record was otherwise inconclusive. Id. at 269. Next, on January 28, 2011, the Ninth Circuit issued Young v. Holder, 2011 WL 257898 (9th Cir. 2011). Young addressed California Health and Safety Code 11352(a). In Young, the petitioner was a lawful permanent resident who had applied for cancellation of removal, and the issue was whether he had been convicted of an aggravated felony for purposes of cancellation of removal. The court reviewed the complaint, information, and a docket printout from the criminal court. Id., at 1781. Based on these documents, the Court found that the record of conviction was inconclusive, and that the petitioner therefore met his burden under Sandoval-Lua to show by a preponderance of the evidence that he is eligible for cancellation of removal. Id. at 1786. Based on Sandoval-Lua, Rosas-Castaneda, and Young, a respondent has met his burden to establish eligibility for adjustment of status by a preponderance of the evidence, and cannot require him to produce additional corroborating documents beyond what is already in the record, where the record of conviction establishes that the conviction was under California Health and Safety Code 11352(a), but without identifying the substance at issue in any of the record of conviction documents. Under these circumstances, a respondent has met his burden under Sandoval-Lua and is eligible for adjustment of status. Thanks to Stacy Tolchin.

BIA

REMOVAL PROCEEDINGS " MENTAL INCOMPETENCY " PROCEDURE
Matter of J-S-S-, 26 I&N Dec. 679 (BIA 2015) (neither party bears burden of proof in immigration proceedings to establish respondents mentally competence; where indicia of incompetency identified, Immigration Judge should determine competence can be established by a preponderance of the evidence, as a finding of fact).

OVERVIEW " REMOVAL PROCEEDINGS " MOTIONS TO SUPRRESS
American Immigration Counsel practice advisory on filing motions to suppress in removal proceedings. http://www.americanimmigrationcouncil.org/sites/default/files/motions_to_suppress_in_removal_proceedings-_a_general_overview_1-26-15_fin.pdf

OVERVIEW " REMOVAL PROCEEDINGS " EVIDENCE
Matter of Bett, 26 I&N Dec. 437 (BIA 2014) (form I-9, employment eligibility verification, is admissible in removal proceedings to establish removability for false claim of U.S. citizenship, under INA 212(a)(6)(C)(ii)(I), 8 U.S.C. 1182(a)(6)(C)(ii)(I)).

INADMISSIBLITY " BURDEN OF PROOF " RETURNING LAWFUL PERMANENT RESIDENT
Matter of Rivens, 25 I&N Dec. 623 (BIA Oct. 19, 2011) (DHS bears burden to show that a returning LPR is an applicant for admission under INA 101(a)(13)(C), 8 U.S.C. 1182(a)(13)(C)(2006)); see Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988) (holding, in the absence of a statutory standard, that no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true); Matter of Kane, 15 I&N Dec. 258, 264 (BIA 1975); see also Landon v. Plasencia, 459 U.S. at 21, 35 (1982) (acknowledging the Boards practice at that time of placing the burden of proof on the Government with respect to returning lawful permanent residents in exclusion proceedings).

CATEGORICAL ANLAYSIS - BURDEN OF PROOF - FACT REQUIRED TO BE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE IS NOT SUFFICIENTLY SHOWN BY RECORD OF CONVICTION THAT NEED BE SHOWN ONLY BY A PREPONDERANCE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington restitution order, contained in judgment, indicating that the respondent owed no restitution to his "child victim" did not "constitute clear and convincing evidence that the respondent was convicted of abusing a child. Specifically, in Washington the facts upon which a restitution award may be based need only have been proven to the judge by a preponderance of the evidence. State v. Dennis, 6 P.3d 1173, 1175 (Wash. Ct. App. 2000). As a result, they do not constitute proof of the defendant's "convicted conduct," which must have been proven beyond a reasonable doubt or admitted as part of a plea.").

EVIDENCE - MARRIAGE & DIVORCE
Matter of Kodwo, 24 I. & N. Dec. 479 (BIA Mar. 26, 2008) (while a court order remains the preferred method of establishing the dissolution of a customary tribal marriage under Ghanaian law, affidavits executed by the heads of household, i.e., the fathers of the couple, that meet specified evidentiary requirements may be sufficient to establish a divorce for immigration purposes), modifying Matter of Kumah,19 I. & N. Dec. 290 (BIA 1985).

REMOVAL PROCEEDINGS " EVIDENCE " POLICE REPORTS " ADMISSIBILITY " WEIGHT AT DISCRETIONARY LEVEL
Matter of Arreguin, 21 I & N Dec 38, 42 (BIA 1995) ("Just as we will not go behind a record of conviction to determine the guilt or innocence of an alien, so we are hesitant to give substantial weight to an arrest report, absent a conviction or corroborating evidence of the allegations contained therein. Here, the applicant conceded that the arrest took place but admitted to no wrongdoing. Considering that prosecution was declined and that there is no corroboration, from the applicant or otherwise, we give the apprehension report little weight.").

REMOVAL PROCEEDINGS - ALIENAGE
Matter of Guevara, 20 I. & N. Dec. 238 (BIA 1991)(a negative inference from silence, without more, does not constitute clear and convincing evidence of alienage).

OVERVIEW - EVIDENCE - REMOVAL PROCEEDINGS - REGULATION VIOLATION AS BASIS TO SUPPRESS EVIDENCE
Matter of Garcia-Flores, 17 I. & N. Dec. 325, 329 (BIA 1980) (adopting administrative exclusionary rule allowing respondent to exclude evidence where government violates a regulation intended to benefit the respondent who can show prejudice as the result of the violation).

Note: This remedy is rooted in the Fifth Amendment, but is a third remedy in addition to Fifth amendment and possibly egregious Fourth amendment violations. Thanks to Dan Kesselbrenner.

DEPORTATION - EVIDENCE - BURDEN OF PRODUCTION - AFTER GOVERNMENT HAS MADE PRIMA FACIE CASE, RESPONDENT MAY BE REQUIRED TO PRODUCE EVIDENCE WITHIN HIS CONTROL
Matter of Vivas, 16 I. & N. Dec. 68 (BIA 1977) (while the government has the initial burden of proof in deportation proceedings, after it has presented a prima facie case, respondent may be required to produce evidence in rebuttal when respondent has better control or knowledge of the evidence (in this instance, the proper identity of his alleged United States citizen wife)).

REMOVAL PROCEEDINGS - ALIENAGE
Matter of Tang, 13 I. & N. Dec. 691 (BIA 1971)(the government must offer evidence of alienage that does not come from the respondent before it can call a respondent as a witness).

REMOVAL PROCEEDINGS - EVIDENCE - AUTHENTICATION
"While there is some doubt as to which methods of proof are acceptable in [a removal proceeding], there is no question that authentication is necessary." Iran v. INS, 656 F.2d 469, 472 (9th Cir. 1981), citing Chung Young Chew v. Boyd, 309 F.2d 857, 866-67 (9th Cir. 1962). 8 C.F.R. 287.6 provides: "In any proceedings under this chapter, an official record or entry therein, when admissible for any purpose, shall be evidenced by an official publication thereof, or by a copy attested by the official having legal custody of the record or by an authorized deputy."

First Circuit

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MINIMUM CONDUCT " BURDEN
Sauceda v. Lynch, ___ F.3d ___ (1st Cir. Apr. 22, 2016) (a non-citizen can qualify for cancellation of removal without having to prove affirmatively that a conviction wasn't for a disqualifying conviction: "We hold that since all the Shepard documents have been produced and the modified categorical approach using such documents cannot identify the prong of the divisible Maine statute under which Peralta Sauceda was convicted, the unrebutted Moncrieffe presumption applies, and, as a matter of law, Peralta Sauceda was not convicted of a "crime of domestic violence."). NOTE: This case addresses the issue of who wins a divisible statute argument when the record of conviction is unclear which part of the statute the noncitizen was convicted under. The Ninth Circuit went back and forth on this issue for several years. See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007); Young v. Holder, 697 F.3d 976, 988"90 (9th Cir.2012) (en banc). Ultimately, however, the Ninth Circuit left this question open following Moncrieffe. See Almanza Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016). This appears to be the first Circuit Court decision to definitively apply Moncrieffe to find that the categorical (and modified categorical) analysis is a question of law, and does not depend upon whether the Government or the Respondent bears the burden of proof.

REMOVAL PROCEEDINGS " EVIDENCE " ALIENAGE " BIRTH CERTIFICATE
Garcia-Aguilar v. Lynch, __ F.3d __ (1st Cir. Nov. 25, 2015) (birth certificate received from Mexican consulate sufficient to establish alienage, independent of alleged constitutional violations).

RELIEF " NON-LPR CANCELLATION OF REMOVAL " BURDEN OF PROOF
Peralta Sauceda v. Lynch, 804 F.3d 101 (1st Cir. Oct. 14, 2015) (noncitizen had burden of proof by a preponderance of the evidence to establish he had not been convicted of a crime of domestic violence, even though Maine courts do not maintain records sufficient to show whether he was convicted under the bodily injury prong of the Maine statute, rather than the general assault prong, which does not involve sufficient violence). NOTE: This case has been reversed on rehearing by Peralta Sauceda v. Lynch, __ F.3d __ (1st Cir. Apr. 22, 2016) (whether a noncitizen is barred from relief is due to a conviction under a divisible statute is a question of law, and therefore not subject to a determination of who bears the burden of proof).

OVERVIEW " REMOVAL PROCEEDINGS " EVIDENCE " POLICE REPORTS
Arias-Minaya v. Holder, 779 F.3d 49 (1st Cir. Feb. 27, 2015) (immigration judge is not barred from considering police reports containing hearsay in determining whether noncitizen deserves relief as a matter of discretion, even where noncitizen was never convicted), citing Paredes"Urrestarazu v. INS, 36 F.3d 801, 810 (9th Cir.1994); Parcham v. INS, 769 F.2d 1001, 1005 (4th Cir.1985).

RELIEF " CANCELLATION OF REMOVAL " NON-LPR CANCELLATION " GOOD MORAL CHARACTER " STATUTORY BARS " JUDICIAL REVIEW
Reynoso v. Holder, ___ F.2d ___, 2013 WL 1197744 (1st Cir. Mar. 26, 2013) (whether applicant for non-LPR cancellation is barred from showing good moral character, under INA 101(f), 8 U.S.C. 1101(f), is a legal question open to judicial review).

ALIENAGE - BURDEN OF PROOF
Nadal-Ginard v. Holder, ___ F.3d ___, 2009 WL 456411 (1st Cir. Feb. 25, 2009 (a person seeking admission to the United States has the burden of proving admissibility); citing 8 C.F.R. 1235.1(b) ("A person claiming U.S. citizenship must establish that fact to the examining officer's satisfaction," and if such person "fails to satisfy the examining immigration officer that he or she is a U.S. citizen, he or she shall thereafter be inspected as an alien."); 8 U.S.C. 1229a(c)(2)(A) (an alien who is an applicant for admission has the burden of establishing that he "is clearly and beyond doubt entitled to be admitted and is not inadmissible under section [212 of the INA]."); see also 8 C.F.R. 1240.8(b) (an arriving alien "must prove that he or she is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged").

REMOVAL PROCEEDINGS - EVIDENCE - NO ERROR IN ADMISSION OF UNTRANSLATED FOREIGN DOCUMENTS- DUE PROCESS CONSIDERATIONS OF FAIRNESS AND RELIABILITY GOVERN AND WERE NOT OFFENDER HERE
Nadal-Ginard v. Holder, ___ F.3d ___, 2009 WL 456411 (1st Cir. Feb. 25, 2009 (no error in admitting untranslated foreign documents in removal proceedings); citing United States v. Diaz, 519 F.3d 56, 64 (1st Cir. 2008) (no plain error in a criminal case where untranslated foreign language documents, including a passport, were admitted under the Federal Rules of Evidence because the "evidentiary significance was facially apparent"); Toure v. Ashcroft, 400 F.3d 44, 48 (1st Cir. 2005) ("[T]he Federal Rules of Evidence do not apply in INS proceedings," rather, " the less rigid constraints of due process impose outer limits based on considerations of fairness and reliability. "), quoting Yongo v. INS, 355 F.3d 27, 30 (1st Cir. 2004)).

REMOVAL PROCEEDINGS - EVIDENCE - RELIABILITY OF EVIDENCE OF FOREIGN NATIONAL'S STATEMENTS WHERE NONCITIZEN DID NOT SPEAK ENGLISH WELL
Valenzuela-Solari v. Mukasey, 551 F.3d 53 (1st Cir. Dec. 22, 2008) (rejecting claim that DHS evidence of false claim of U.S. citizenship was unreliable because of petitioner's limited understanding of English; records created by ICE officers indicated no problems with speaking with petitioner at the border and petitioners later claim that he did not understand English was inconsistent with his own statements to the ICE officers during inspection).

Second Circuit

REMOVAL PROCEEDINGS " EVIDENCE " FOURTH AMENDMENT VIOLATION
Pretzantzin v. Holder, 725 F.3d 161 (2d Cir. Jul. 31, 2013) (reversing BIA denial of motion to suppress evidence obtained in egregious violation of Fourth Amendment and termination of removal proceedings, where BIA erred in concluding that the government had met its burden of establishing that certain alienage-related evidence had been obtained independent of any constitutional violation; and declined the opportunity to show that it had been obtained from an independent source).

REMOVAL PROCEEDINGS " EVIDENCE - TESTIMONY
Chen v. Holder, 658 F.3d 246 (2d Cir. Sept. 23, 2011) (claim that respondent's husband was unavailable to testify in support of his wife's asylum claim due to fear of apprehension does not establish that husband was not available to testify to corroborate asylum claim; in this instance, husband's testimony, if helpful in allow spouse to obtain asylee status, would also have allowed the husband to obtain status as a derivative).

REMOVAL PROCEEDINGS - EXISTENCE OF CONVICTION - ADMISSION IN PROCEEDINGS OF CONVICTION THROUGH LAWYER SUFFICIENT TO ESTABLISH CONVICTION FOR PURPOSES OF ESTABLISHING REMOVABILITY
Roman v. Mukasey, 553 F.3d 184 (2d Cir. Jan. 21, 2009) ("There is no legal or constitutional error in the IJ and BIA's determination that Roman's admission of removability-which explicitly admitted the allegations in the NTA "and the basis for the charge of removal"-satisfied the government's evidentiary burden. "[W]hen an admission is made as a tactical decision by an attorney in a deportation proceeding, the admission is binding on his alien client and may be relied upon as evidence of deportability." Matter of Velasquez, 19 I. & N. Dec. 377, 382 (B.I.A.1986); cf. Ali v. Reno, 22 F.3d 442, 446 (2d Cir.1994) (alien bound by counsel's admission that a timely answer had not been filed).").

REMOVAL PROCEEDINGS - DEPORTATION - BURDEN OF PROOF
Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008) ("When the Government has decided to seek the removal of a lawfully admitted alien under 8 U.S.C. 1227(a)(2)(A)(iii), the Government is obligated to prove that the alien's conviction falls within the statutory definition of "aggravated felony." See 8 U.S.C. 1229a(c)(3)(A); Ibragimov v. Gonzales, 476 F.3d 125, 131 (2d Cir .2007). That the Government finds that task difficult in some cases is no reason for immigration courts to renounce the restrictions that the courts have said the law requires.")

REMOVAL - INADMISSIBILITY - BURDEN OF PROOF - GOVERNMENT MUST PROVE
Singh v. USDHS, 517 F.3d 638 (2d Cir. Feb. 29, 2008) ("Because of Singh's status as a permanent resident, the government bears the burden of proof, which it could only meet "by adducing clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true." Francis v. Gonzales, 442 F.3d 131, 138 (2d Cir. 2006) (quoting Woodby v. INS, 385 U.S. 276 (1966)).").

JUDICIAL REVIEW - BIA APPEAL - ADMINISTRATIVE NOTICE
Burger v. Gonzales, __ F.3d __, 2007 WL 2331944 (2d Cir. Aug. 17, 2007) ("This Court recently held that if the Board of Immigration Appeals ("BIA") intends to take administrative notice of potentially dispositive facts, it must warn a petitioner and provide the petitioner with an opportunity to respond before it denies a motion to reopen on the basis of those facts. See Chhetry v. U.S. Dept of Justice, 490 F.3d 196, 201 (2d Cir. 2007) (per curiam). The Court declined to resolve the related question whether due process requires this same result before the BIA enters a final order of removal on the basis of administratively noticed facts. We now address this question and hold that it does.")

Third Circuit

IMMIGRATION PROCEEDINGS " MOTION TO SUPPRESS
Oliva-Ramos v. Atty Gen. of the United States, 694 F.3d 259 (3rd Cir. Sept. 13, 2012) (IJ and BIA failed to adequately address respondents claims that his arrest was an egregious violation of the Fourth Amendment, or that the ICE Officers failed to property obtain consent, engaged in improper search and seizure, and did not give proper advisals) NOTE: This case does a good job of summarizing prior law of motions to suppress, Fourth Amendment rights and duties of ICE Officers in conducting a pre-dawn raid.

JUDICIAL REVIEW - EVIDENCE - FACT FINDING BY BIA
Forteau v. U.S. Atty. Gen'l., __ F.3d __ (3d Cir. Jul. 20, 2007) ("The BIA simply ignored [the IJ's factual] findings and replaced them with its own version of the facts. ... Because the BIA did not defer to the IJs factual findings and review them for clear error, and because the BIA engaged in its own independent factfinding, we ... summarily grant the petition for review and remand for further proceedings.").

Fourth Circuit

JUDICIAL REVIEW - IMMIGRATION COURT - CONTINUANCE
Lendo v. Gonzales, 493 F.3d 439 (4th Cir. Jul. 10, 2007) (IJ did not abuse discretion in refusing to continue petitioner's removal proceedings indefinitely to await decision on wife's labor certification).

Fifth Circuit

REMOVAL PROCEEDINGS " EVIDENCE " SEALED PRESENTENCE REPORT
United States v. Iqbal, 684 F.3d 507 (5th Cir. 2012) (affirming district court order releasing portions of the presentence report from a criminal case to DHS for use in removal proceedings, because the reasons for confidentiality can be outweighed when [as here] the moving party can show a compelling, particularized need for disclosure to meet the ends of justice.); quoting United States v. Huckaby, 43 F.3d 135, 139 (5th Cir. 1995). Note: Criminal defense counsel must therefore contest facts in the PSR that would prove damaging in later removal proceedings.

CONVICTION - EXISTENCE - LEGAL INVALIDITY - IMMIGRATION COURTS MAY NOT ENTERTAIN A CLAIM THAT A CONVICTION, WHICH HAS NOT BEEN OVERTURNED IN CRIMINAL COURT, IS LEGALLY INVALID
Singh v. Holder, 568 F.3d 525 (5th Cir. May 14, 2009) (noncitizen may not collaterally attack the legal validity of a criminal conviction, which has not been overturned in criminal court, in immigration proceedings), following Brown v. U.S. INS, 856 F.2d 728, 731 (5th Cir.1988); see also Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981) ("Once the [state criminal] conviction becomes final, it provides a valid basis for deportation unless it is overturned in a judicial post-conviction proceeding.").

Sixth Circuit

POST CON RELIEF " REVIEW " CREDIBILITY DETERMINATION REMOVAL PROCEEDINGS " EVIDENCE
Pola v. United States, ___ F.3d ___, 2015 WL 690312 (6th Cir. Feb. 19, 2015) (fact that court characterizes petitioners affidavit as self-serving " standing alone " is an insufficient basis on which to sustain an adverse credibility determination). The court stated: But an affidavit is not incredible just because the asserted facts favor the affiant. See, e.g., Valentine, 488 F.3d at 334 (holding that the district court abused its discretion by denying the petitioner an evidentiary hearing when the petitioner had provided a factual narrative of events that was not blatantly incredible); Smith v. United States, 348 F.3d 545, 551, 554 (6th Cir. 2004) (finding that the district court abused its discretion when it denied the petitioner an evidentiary hearing because he had only submitted self-serving testimony that he would have pleaded guilty had his attorney advised him of the sentencing exposure). (Id. at ___.)

JUDICIAL REVIEW - CONTINUANCE - IMMIGRATION JUDGE ERRONEOUSLY DENIED UNOPPOSED REQUEST FOR CONTINUANCE TO PRESENT EVIDENCE IN SUPPORT OF ADJUSTMENT OF STATUS
Badwan v. Gonzales, __ F.3d __ (6th Cir. Jul. 18, 2007) (IJ abused discretion in denying petitioner's unopposed motion for a continuance to present evidence in support of his application for adjustment of status)

Seventh Circuit

REMOVAL PROCEEDINGS " EVIDENCE " BURDEN OF PROOF RELIEF " CANCELLATION OF REMOVAL " CONTINUOUS PRESENCE REQUIREMENT
Lopez-Esparza v. Holder, __ F.3d __ (7th Cir. Oct. 23, 2014) (noncitizen need only establish continuous presence for purposes of relief by a preponderance of the evidence; exact recollection of travel dates not required).

OVERVIEW " REMOVAL PROCEEDINGS " EVIDENCE " UNCORROBORATED ARREST REPORTS
Avila-Ramirez v. Holder, ___ F.3d ___, 2014 WL 4099729 (7th Cir. Aug. 21, 2014) (reversing BIA denial of discretionary relief from removal, where BIA failed to follow its own precedent by giving undue weight to uncorroborated arrest reports where respondent denied any wrongdoing).

REMOVAL PROCEEDINGS - EVIDENCE - SUBPOENA POWER
Malave v. Holder, 610 F.3d 483 (7th Cir. Jun. 29, 2010) (IJ erred in denying request to issue subpoena to former spouse where validity of the marriage was at issue in determining eligibility for NACARA relief).

REMOVAL PROCEEDINGS - HEARING - RIGHT TO PRESENT EVIDENCE
Figueras v. Holder, 574 F.3d 434 (7th Cir. Jul. 27, 2009) (BIA violated statutory right to a reasonable opportunity to present evidence of eligibility for adjustment of status by refusing to either remand the case to allow the IJ to consider respondent's additional evidence or rule on the merits of her proposed alternative theory of adjustment eligibility as a matter of law).

REMOVAL PROCEEDINGS - EVIDENCE
Duad v. Holder, 556 F.3d 592 (7th Cir. Feb. 12, 2009) (due process does not preclude use of hearsay evidence in administrative immigration proceedings, as long as it is reliable), citing Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (permitting use of hearsay evidence in Social Security disability administrative proceedings); Niam v. Ashcroft, 354 F.3d 652, 659 (7th Cir.2004)

IMMIGRATION OFFENSES - ILLEGAL REENTRY - EVIDENCE - IMMIGRATION FILE NOT SUBJECT TO CONFRONTATION OBJECTION
United States v. Burgos, 539 F.3d 641, 2008 WL 3877257 (7th Cir. Aug. 22, 2008) (contents of "A-file" are nontestimonial business records not subject to the requirements of the confrontation clause), citing Crawford v. Washington, HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=WCLP1.0&vr=2.0&DB=780&FindType=Y&SerialNum=2004190005" 541 U.S. 36 (2004) , and Davis v. Washington, HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=WCLP1.0&vr=2.0&DB=780&FindType=Y&SerialNum=2009382784" 547 U.S. 813 (2006) .

REMOVAL PROCEEDINGS - EVIDENCE
Rapheal v. Mukasey, 533 F.3d 521 (7th Cir. Jul. 2, 2008) (IJ violated statute by failing to afford respondent a chance to review an Immigration Report admitted against her in a removal proceeding).

REMOVAL - DUE PROCESS - RIGHT TO REBUT GOVERNMENT EXPERT TESTIMONY
Tadesse v. Gonzales, 492 F.3d 905 (7th Cir. Jul. 9, 2007) (immigration judge violated due process by failing to give petitioner an opportunity to rebut government's expert testimony and wrongfully disregarding petitioner's corroborating evidence).

Eighth Circuit

REMOVAL PROCEEDINGS " EVIDENCE
Fraser v. Lynch, __ F.3d __ (8th Cir. Jul. 31, 2015) (government established removability based on Canadian drug conviction by submission of Canadian court Information and Trial Disposition referencing an indictment where Canadian law defines an indictment to include an information.).

OVERVIEW " MOTION TO SUPPRESS OVERVIEW " REMOVAL PROCEEDINGS " FORM I-213
Chavez-Castillo v. Holder, __ F.3d __ (8th Cir. Nov. 17, 2014) (police officer showed probable cause for arrest where noncitizen was driving nine miles over the speed limit; lack of opportunity to cross examine officer who prepared Form I-213 did not violated due process).

OVERVIEW " EVIDENCE " MOTION TO SUPRESS
Lopez-Gabriel v. Holder, 653 F.3d 683 (8th Cir. Sept. 2, 2011) (to establish that statements are involuntary, in violation of Fifth Amendment, noncitizen must show coercion, duress, or improper action by an officer that overbore his will; stopping a car because of cracked windshield did not establish evidence of racial profiling; arresting and handcuffing noncitizen who failed to show identification, followed by questioning by police officers and ICE without Miranda warnings was not sufficient basis to grant motion to suppress).

REMOVAL PROCEEDINGS - EVIDENCE
Kim v. Holder , 560 F.3d 833 (8th Cir. Mar. 26, 2009) ("The federal rules of evidence, however, do not apply in immigration proceedings. Solis v. Mukasey, 515 F.3d 832, 835-36 (8th Cir.2008). Hearsay evidence is therefore admissible if it is probative and its admission is fundamentally fair. Id. at 836 (quoting Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir.2004)").

REMOVAL PROCEEDINGS - EVIDENCE - DUE PROCESS VIOLATION WHERE INVESTIGATIVE REPORT CONTAINED NO DETAILS BY WHICH TO ASSESS ITS RELIABILITY AND MULTIPLE LEVELS OF HEARSAY
Banat v. Holder, 557 F.3d 886 (8th Cir. Mar. 6, 2009) (due process rights were violated when the Immigration Judge based his adverse credibility determination on a investigation report from the State Department that provided no details that would allow the IJ to assess the investigation's reliability or trustworthiness and contained multiple levels of hearsay).

REMOVAL PROCEEDINGS - EVIDENCE
Banat v. Holder , 557 F.3d 886 (8th Cir. Mar. 6, 2009) (IJ did not err in admitting a Form I-213 into evidence, because the BIA did not violate its own regulations in obtaining the form).

REMOVAL PROCEEDINGS - EVIDENCE - RIGHT TO REMAIN SILENT NOT VIOLATED BECAUSE DEFENDANT NOT IN CUSTODY DURING INTERVIEW
United States v. Elzahabi, 557 F.3d 879 (8th Cir. Mar. 5, 2009) (conviction for immigration fraud upheld where defendant was not in custody during interview, so no Miranda warning was required, because agents repeatedly advised him he was free to leave, never physically restrained him, and never placed him in handcuffs).

OVERVIEW - EVIDENCE
Badasa v. Mukasey, 540 F.3d 909, 911 (8th Cir. Aug. 29, 2008) ("We know only that the BIA thinks that if, hypothetically, the IJ had not considered Wikipedia and reached the same conclusion, then that conclusion would not be clearly erroneous. But we do not know whether the IJ would have reached the same conclusion without Wikipedia, or whether (and, if so, why) the BIA believes that the IJ's consideration of Wikipedia was harmless error, in the sense that it did not influence the IJ's decision. Because the BIA's ultimate conclusion that Badasa failed to establish her identity is not adequately explained, we must remand for further proceedings.")

EVIDENCE - HEARSAY - POLICE REPORTS - ASYLUM - PARTICULARLY SERIOUS CRIME
Solis v. Mukasey, 515 F.3d 832 (8th Cir. Feb. 8, 2008) (police report, although hearsay, was allowed into evidence for purposes of rebutting respondents version of the underlying facts of controlled substances conviction in determining whether the conviction was for a particularly serious crime).

JUDICIAL REVIEW - PETITION FOR REVIEW - JURISDICTION - DENIAL OF CONTINUANCE NOT REVIEWABLE ON PETITION FOR REVIEW
Ikenokwalu-White v. Gonzales, __ F.3d __, 2007 WL 1964645 (8th Cir. Jul. 9, 2007) (court lacks jurisdiction to review denial of continuance).

Ninth Circuit

RELIEF " BURDEN OF PROOF " INCONCLUSIVE RECORD OF CONVICTION
Almanza-Arenas v. Holder, ___ F.3d ___, ___ (9th Cir. Nov. 10, 2014) (Almanza-Arenass record of conviction did not conclusively show whether or not he was convicted of a crime involving moral turpitude. The BIA not only engaged in the modified categorical approach impermissibly, but also determined that, where the record of conviction was inconclusive, the petitioner was ineligible for cancellation of removal. This was in error. In Moncrieffe, the Supreme Court held that [b]ecause we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense. 133 S.Ct. at 1684 (internal quotations omitted). Because the record is inconclusive as to whether Almanza-Arenas was convicted for intending to permanently or temporarily take a vehicle we must presume that he was convicted for joyriding, which is not a crime of moral turpitude.), finding Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc) (a petitioner cannot fulfill his burden to demonstrate eligibility for cancellation by establishing an inconclusive record), was abrogated in part by Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (an alien convicted under a state statute whose elements are not necessarily the same as the generic federal disqualifying offense remains eligible for cancellation).

REMOVAL PROCEEDINGS " EVIDENCE " UNCERTIFIED FACSIMILE COPY OF PLEA TRANSCRIPT HELD ADMISSIBLE
Padilla-Martinez v. Holder, ___ F.3d ___, 2014 WL 5421219 (9th Cir. Oct. 27, 2014) (failure to fully comply with the terms of the statute and regulation [8 U.S.C. 1229a(c)(3); 8 C.F.R. 1003.41] does not render electronic conviction records inadmissible; holding admissible an uncertified facsimile copy of a transcript of the state court felony change-of-plea proceedings to establish drug-trafficking aggravated felony conviction); citing Sinotes"Cruz v. Gonzales, 468 F.3d 1190, 1195"96 (9th Cir. 2006) (admitting copies of criminal convictions that were stamped by an immigration agent and appeared to be official state-court records even though certification by a state official was lacking); 8 U.S.C. 1229a(c)(3)(C) instead establishes the maximum standard for authentication of electronically transmitted records of conviction, but it does not establish a minimum standard. The BIA may therefore admit evidence under either the requirements of the INA statute or through any procedure that comports with common law rules of evidence. [Admissibility is generally warranted so long as there is] some sort of proof that the document is what it purports to be.); quoting Iran v. I.N.S., 656 F.2d 469, 472 n. 8 (9th Cir.1981) (as amended)).

REMOVAL PROCEEDINGS " EVIDENCE " ADVERSE INFERENCE FROM SILENCE ALONE
Urooj v. Holder, 734 F.3d 1075 (9th Cir. Nov. 6, 2013) (IJ erred by granting termination of asylee status on the basis of fraud based solely on the adverse inference drawn from the silence of the sole witness who refused to answer questions; the IJ violated due process by filing to require DHS to adhere to the local operating procedures requiring advance disclosure of witnesses and exhibits).

ARTICLE " NINTH CIRCUIT EN BANC CASE ON CATEGORICAL ANALYSIS
In Young v. Holder, 697 F.3d 976 (9th Cir. Sept. 17, 2012) (en banc), the Ninth Circuit held that Petitioner failed to exhaust the claim that his conviction was not for a violation of a law relating to a controlled substance within the meaning of 8 U.S.C. 1227(a)(2)(B)(i), so the court lacked jurisdiction over that claim. It also held that the evidentiary limitations articulated in Shepard v. United States, 544 U.S. 13, 26 (2005), apply when determining, under the modified categorical approach, whether a prior conviction renders an alien ineligible for cancellation of removal as an aggravated felon under 8 U.S.C. 1229b. It held that under the modified categorical approach, a guilty plea to a conjunctively phrased charging document establishes only the minimal facts necessary to sustain a defendant's conviction. In other words, when a conjunctively phrased charging document alleges several theories of the crime, a guilty plea establishes a conviction under at least one, but not necessarily all, of those theories. In so deciding, the court reconciled its inconsistent precedents on this issue by adopting one line of cases"including Malta"Espinoza v. Gonzales, 478 F.3d 1080, 1082 n.3 (9th Cir.2007)"and rejecting the other, including United States v. Snellenberger, 548 F.3d 699, 701(9th Cir.2008) (en banc) (per curiam). Finally, it held that an alien cannot carry the burden of demonstrating eligibility for cancellation of removal by merely establishing that the relevant record of conviction is inconclusive as to whether the conviction is for an aggravated felony. It overruled Sandoval"Lua v. Gonzales, 499 F.3d 1121, 1130"31(9th Cir.2007), and Rosas"Castaneda v. Holder, 655 F.3d 875, 883"84 (9th Cir.2011), to the extent that they conflict with this holding.

REMOVAL PROCEEDINGS " EVIDENCE " FOURTH AMENDMENT VIOLATION " WARRANTLESS ARREST
Garcia-Torres v. Holder, ___ F.3d ___ (9th Cir. 2012) (warrantless arrest does not constitute egregious Fourth Amendment violation sufficient to warrant suppression of evidence in removal proceedings); see Puc-Ruiz v. Holder, 629 F.3d 771 (8th Cir. 2010).

REMOVAL PROCEEDINGS " BURDEN " EFFECT OF ADMISSION BY RESPONDENT
Perez-Mejia v. Holder, ___ F.3d ___, ___, 2011 WL 5865888 (9th Cir. Nov. 23, 2011), amending 641 F.3d 1143 (9th Cir. Apr. 21, 2011) (By admitting at the pleading stage that he was convicted of possessing cocaine for sale and conceding that he was, therefore, removable, Perez"Mejia relieved the government of its burden of offering further evidence to prove that he was removable), adopting reasoning of Hoodho v. Holder, 558 F.3d 184 (2d Cir. 2009). NOTE: The court resolves several decisions going both ways by stating: In essence, if at the 1240.10(c) pleading stage an alien, individually or through counsel, makes admissions of fact or concedes removability, and the IJ accepts them, no further evidence concerning the issues of fact admitted or law conceded is necessary. If an alien's admissions or concession leave material issues in dispute, or the IJ is not satisfied with an admission or concession, the proceeding moves to the 1240.10(d) evidentiary stage. If the issue concerning removability being addressed at that stage requires applying the modified categorical approach, the IJ may rely on facts admitted at the pleading stage, but may not consider any further statements made by the alien unless they are contained in the specific set of documents that are part of the record of conviction. See 8 C.F.R. 1240.10(d) (When removability is not determined under the provisions of paragraph (c) of this section, the immigration judge ... shall receive evidence as to any unresolved issues, except that no further evidence need be received as to any facts admitted during the pleading....); S"Yong, 600 F.3d at 1035 (when alien's admissions in pleading stage are not sufficient to establish removability and modified categorical approach must be applied, alien's statements to the immigration judge after the pleading stage regarding the nature of his criminal conduct may not be considered). Perez-Mejia v. Holder, ___ F.3d ___, *9, 2011 WL 5865888 (9th Cir. Nov. 23, 2011).

RELIEF " BURDEN OF PROOF
The Ninth Circuit granted rehearing en banc in Young v. Holder, 634 F.3d 1014 (9th Cir. Jan. 28, 2011) (noncitizen has met burden of proof by a preponderance that noncitizen is not subject to bar to relief if criminal conviction is ambiguous as to whether conviction is an aggravated felony).

REMOVAL PROCEEDINGS " DISCOVERY " DUE PROCESS REQUIRES GOVERNMENT TO PROVIDE DOCUMENTS NECESSARY TO LITIGATE RESPONDENTS CLAIMS
Dent v. Holder, 627 F.3d 365 (9th Cir. Nov. 9, 2010) (due process violated where noncitizen was not provided with documents in his A-file necessary to afford him an opportunity to fully and fairly litigate his removal and his defensive citizenship claim).

REMOVAL PROCEEDINGS - EVIDENCE - IMMIGRATION JUDGE MAY NOT USE NOTES MADE DURING BOND HEARING TO DECIDE MERITS ISSUE
Joseph v. Holder, ___ F.3d ___, 2010 WL 1462373 (9th Cir. Apr. 14, 2010) (immigration judge may not use notes made or information acquired during bond hearing to decide merits issue).

RELIEF - BURDEN OF PROOF
Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. Jan. 28, 2010) (record of conviction that is inconclusive as to the exact nature of the controlled substance involved is sufficient to establish eligibility for cancellation of removal, placing on the government the burden of going forward to prove that the controlled substance the petitioner possessed was heroin or some other controlled substance listed under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II)); following Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1129-30 (9th Cir.2007) (person seeking "to prove eligibility for cancellation of removal can meet his or her initial burden by pointing to an inconclusive record of conviction."); S-Yong v. Holder, 578 F.3d 1169, 1174, 1176 (9th Cir.2009).

BURDEN OF PROOF - RELIEF
S-Yong v. Holder, 578 F.3d 1169 (9th Cir. Aug. 25, 2009) ("We have held that a petitioner satisfies his burden of proof by showing, as Yong has done here, that the judicially noticeable documents in the record are inconclusive. Sandoval-Lua, 499 F.3d at 1130. "[T]he documents to which we are limited ... are not a purely practical limit; they are also a legal limit, intended to hold our inquiry to the legal conviction rather than the factual conduct." Id. at 1131-32. There is no document in the record that proves Yong was convicted under Section 11378, much less that any such conviction was an aggravated felony.").

REMOVAL PROCEEDINGS - REMOVAL ORDER MUST BE SUPPORTED BY SUBSTANTIAL EVIDENCE
Al Mutarreb v. Holder, 561 F.3d 1023 (9th Cir. Apr. 6, 2009) (reversing removal order where the record contained no evidence relevant to the charge of removability, and thus the order was not supported by substantial evidence).

EVIDENCE - SECRET EVIDENCE
Kaur v. Holder, 561 F.3d 957 (9th Cir. Apr. 1, 2009) (BIA misused secret evidence by failing to give summary of that evidence to noncitizen in proceedings who had been admitted to the United States).

"The regulations governing immigration proceedings permit the use of classified information. See 8 C.F.R. 1240.33(c)(4) ("The Service counsel for the government may call witnesses and present evidence for the record, including information classified under the applicable Executive Order."). In 1956, the Supreme Court sanctioned the use of confidential or secret information in connection with discretionary decisions in immigration proceedings. Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242 (1956). . . .

The regulations state that a summary of the classified evidence "may" be provided if it is possible to "safeguard[ ] both the classified nature of the information and its source." 8 C.F.R. 1240.33(c)(4). Such a summary "should be as detailed as possible, in order that the applicant may have an opportunity to offer opposing evidence." 8 C.F.R. 1240.33(c)(4). . . .

To be constitutional as to admitted aliens, who are entitled to due process, see Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), the regulation must be read to require that summaries of the classified evidence be provided so long as it is possible to "safeguard[ ] both the classified nature of the information and its source." 8 C.F.R. 1240.33(c)(4). The summaries must be "as detailed as possible" without jeopardizing "the classified nature of the information or its source," such that the alien can reasonably respond to the government's allegations. . . .

In addition to the regulatory limitations, the use of secret evidence is cabined by constitutional due process limitations. Although the Federal Rules of Evidence do not apply in administrative proceedings, we have long held that there are limits on the admissibility of evidence and that the test for admissibility includes "fundamental fairness." Martin-Mendoza v. INS, 499 F.2d 918, 921 (9th Cir.1974) (citing Marlowe v. INS, 457 F.2d 1314 (9th Cir.1972)). The BIA has also recognized this principle in its own decisions: "[t]o be admissible ... evidence must be probative and its use fundamentally fair so as not to deprive respondents of due process of law as mandated by the fifth amendment." In re Toro, 17 I. & N. Dec. 340, 343 (B.I.A.1980).

SELF-INCRIMINATION - CIVIL CONTEXT - ATTORNEY-CLIENT PRIVILEGE
Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 2008 WL 4051083 (9th Cir. Aug. 28, 2008) (an adverse inference could properly be drawn from defendants exercise of privilege against self-incrimination).

REMOVAL PROCEEDINGS - MOTION TO SUPPRESS EVIDENCE
Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. Aug. 8, 2008) (DHS violated Fourth Amendment right to search & seizure by entering noncitizens home without warrant or consent; failure to object does not equate with consent; resulting I-213 should have been suppressed).

EVIDENCE - EXCLUSIONARY RULE GENERALLY DOES NOT APPLY IN IMMIGRATION PROCEEDINGS
Hong v. Mukasey, 518 F.3d 1030 (9th Cir. Mar. 4, 2008) (the exclusionary rule does not generally apply in immigration proceedings).

REMOVAL PROCEEDINGS - EVIDENCE - AUTHENTICATION
Petrosyan v. Mukasey, 508 F.3d 1179 (9th Cir. Nov. 27, 2007) (respondent may seek to authenticate a foreign public document by any means established under 8 C.F.R. 287.6(c), Fed. R. Evid. 901 or any other recognized procedure, including through testimony of respondent).

REMOVAL PROCEEDINGS - EVIDENCE - REVIEW
Petrosyan v. Mukasey, 508 F.3d 1179 (9th Cir. Nov. 27, 2007) (Immigration Judge decision to exclude document from evidence reviewed for abuse for discretion unless exclusion was based solely on a legal ground, where review is de novo).

RELIEF - BURDEN OF PROOF - INCONCLUSIVE RECORD OF CONVICTION ESTABLISHES ELIGIBILITY FOR RELIEF
Sandoval-Lua v. Gonzales, ___ F.3d ___, 2007 WL 2421427 (9th Cir. Aug. 28, 2007) (California conviction of transportation of methamphetamines, in violation of Health & Safety Code 11379(a), did not constitute a drug-trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), and therefore did not disqualify the noncitizen from eligibility for cancellation of removal for LPRs, under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3), because the noncitizen offered an inconclusive record of conviction that showed the conviction was not necessarily for an aggravated felony, and thus offered sufficient evidence to establish by a preponderance of the evidence that he was not convicted of an aggravated felony).

The court stated:

we must determine whether the judicially noticeable documents establish that Lua's conviction necessarily was for all of the elements constituting an aggravated felony under 8 U.S.C. 1101(a)(43)(B). If the record of conviction does not so establish, Lua's 11379(a) conviction cannot amount to the generic offense, and Lua has carried his burden. This conclusion results from the Supreme Court's holdings in Taylor, 495 U.S. 599-602, and Shepard, 544 U.S. at 19-21, which both stress that a predicate conviction qualifies as a generic crime under the modified categorical approach only if the record of conviction shows the jury "necessarily" found all of the generic elements, or the defendant "necessarily" admitted all of the generic elements in a plea.

It is just as possible, on the basis of the record, that Lua pleaded to the nongeneric elements. When confronted with such a record, pursuant to Taylor and Shepard we must conclude as a matter of law that the conviction was not for a generic offense for purposes of determining whether Lua has committed an aggravated felony under the INA. Thus, Lua has carried his burden to show that he has not been convicted of an aggravated felony. Sandoval-Lua v. Gonzales, ___ F.3d ___, ___, 2007 WL 2421427 (9th Cir. Aug. 28, 2007) (footnotes omitted).

RELIEF - BURDEN OF PROOF
Sandoval-Lua v. Gonzales, ___ F.3d ___, 2007 WL 2421427 (9th Cir. Aug. 28, 2007) (respondent in removal proceedings bares the burden of proof before the BIA to establish eligibility for relief by a preponderance of the evidence), citing 8 C.F.R. 1240.8(d); see also Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. July 31, 2006) ("[A]n alien who applies for cancellation of removal bears the burden of demonstrating that he is eligible for such relief.").

JUDICIAL REVIEW - EVIDENCE - ADVERSE INFERENCE
Singh v. Gonzales, 491 F.3d 1019 (9th Cir. Jun. 12, 2007) (petition for review granted where IJ erred in denying applications for asylum and related relief solely because of adverse inference drawn from noncitizen's refusal to allow access to a Canadian immigration file under his name).

REMOVAL PROCEEDINGS " EVIDENCE " JUDICIAL NOTICE
Circu v. Gonzales, 450 F.3d 990, 993-95 (9th Cir. 2006) (en banc) (BIA may take judicial notice of a fact only if it gives the applicant notice of its intent to do so, and an opportunity to show cause why such notice should not be taken, or to present additional evidence; IJ violated due process by taking judicial notice of a new country conditions report without providing alien notice and an opportunity to respond); Getachew v. INS, 25 F.3d 841, 846-47 (9th Cir. 1994) (request in INS brief to take administrative notice of country changes in Ethiopia did not provide adequate notice to petitioner); Kahssai v. INS, 16 F.3d 323, 324-25 (9th Cir. 1994) (per curiam) (Ethiopia); Gomez-Vigil v. INS, 990 F.2d 1111, 1114 (9th Cir. 1993) (per curiam) (Nicaragua); Castillo-Villagra v. INS, 972 F.2d 1017, 1026-31 (9th Cir. 1992) (denial of pre-decisional notice violated due process and demonstrated failure to make individualized assessment of Nicaraguans claims). Note. If an IJ takes administrative notice of changed country conditions during the hearing, there is no violation of due process because the applicant has an opportunity to respond with rebuttal evidence. See Kazlauskas v. INS, 46 F.3d 902, 906 n.4 (9th Cir. 1995) (Lithuania); Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir. 1993) (Polish Solidarity supporters had ample opportunity to argue before the immigration judges and before the [BIA] that their fear of persecution remained well-founded); Kotasz v. INS, 31 F.3d 847, 855 n.13 (9th Cir. 1994) (applicants given ample opportunity to discuss changes in Hungary). The Ninth Circuit has taken judicial notice of recent events occurring after the BIAs decision. See Gafoor v. INS, 231 F.3d 645, 655-56 (9th Cir. 2000) (taking judicial notice of recent events in Fiji and noting that the government would have an opportunity to challenge the significance of the evidence on remand), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009). However, the court of appeal may not determine the issue of changed country conditions in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam); Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 999-1000 (9th Cir. 2003) (Guatemala). Notice of intent to take administrative notice is all that is required if extra-record facts and questions are legislative, indisputable, and general. Circu v. Gonzales, 450 F.3d 990, 993 (9th Cir. 2006) (en banc) (internal quotation marks omitted); see also Gonzales v. INS, 82 F.3d 903, 911-12 (9th Cir. 1996); Getachew v. INS, 25 F.3d 841, 846-47 (9th Cir. 1994); Castillo-Villagra v. INS, 972 F.2d 1017, 1027-29 (9th Cir. 1992). However, more controversial or individualized facts require both notice to the [alien] that administrative notice will be taken and an opportunity to rebut the extra-record facts or to show cause why administrative notice should not be taken of those facts. Circu, 450 F.3d at 993 (emphasis and alteration in original) (internal quotation marks omitted). An example of an indisputable fact is a political partys victory in an election, whereas a controversial fact is whether the election has vitiated any previously well-founded fear of persecution. Id. at 994. Thanks to Holly Cooper.

REMOVAL PROCEEDINGS - EVIDENCE
Where the DHS has not presented any official record of conviction, an inference is warranted that the DHS either has no such record or that the record would not support its case. See Sidhu v. INS, 220 F.3d 1085, 1090-92 (9th Cir. 2000) (drawing an adverse inference from the failure to present "easily available" evidence); S.C. Johnson & Son, Inc. v. Louisville & Nashville R.R., 695 F.2d 253, 259 (7th Cir. 1982) ("It is elementary that if a party has evidence in its control and fails to produce it, an inference may be warranted that the document would have been unfavorable."), quoting Commercial Ins. Co. Newark v. Gonzalez, 512 F.2d 1307, 1314 (1st Cir. 1975).

REMOVAL PROCEEDINGS - EVIDENCE - EVIDENCE FROM UNIDENTIFIED SOURCE CANNOT BE CONSIDERED CLEAR AND UNEQUIVOCAL
Even where evidence is presented in a Form I-213 Record of Deportable Alien, that evidence cannot constitute "clear, unequivocal, and convincing evidence" of removability where the information contained in the Form I-213 comes from an unknown source. Compare Espinoza v. INS, 45 F.3d 308, 311 (9th Cir. 1995) ("Here we have a government document in which a government agent simply noted a persons alienage, presumably from information out of the aliens mouth.") (emphasis added); Matter of Ponce-Hernandez, 22 I & N Dec. 784, 785 (BIA 1999)("there is nothing to indicate that [the information in the Form I-213] came from anyone other than the respondent"). Where the DHS does not identify the documents and databases upon which the agency relied in creating the I-213, counsel can argue that the I-213 should not be relied upon to make a finding of removability. See, Murphy v. INS, 54 F.3d 605, 610-11 (9th Cir. 1995) (concluding that an unauthenticated I-213 "merits little (if any) weight" because the petitioner disputed "significant information" on the form and "also provided information regarding the source of the information recorded on the form, an INS informant who apparently had some ulterior motive to make statements against" him); Cunanan v. INS, 856 F.2d 1373, 1374 (9th Cir. 1988) (BIAs reliance on an I-213 was fundamentally unfair because the information therein came from a woman, the petitioners wife, who had not been subject to cross-examination).

OVERVIEW - EVIDENCE - REMOVAL PROCEEDINGS - MOTION TO SUPPRESS EVIDENCE FOR EGREGIOUS FOURTH AMENDMENT VIOLATIONS
In the Ninth Circuit, the controlling cases on egregious Fourth amendment violations are Orhorhage v. INS, 38 F.3d 488, 503 (9th Cir.1994) and Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994). The Immigration Judge has authority to consider the constitutional claim that evidence is inadmissible as a result of egregious Fourth Amendment violations, i.e., when a reasonable officer knew or should have known that the Fourth amendment rights would be violated by this conduct and proceeded anyway. Nevertheless, much of the finding of egregiousness in both cases is grounded on the racialist character of the hunch that the person was an "alien". Counsel can also ask to subpoena the police officer who conducted the arrest or search. Thanks to Rick Coshnear.

REMOVAL PROCEEDINGS - EVIDENCE - AUTHENTICATION
"While there is some doubt as to which methods of proof are acceptable in [a removal proceeding], there is no question that authentication is necessary." Iran v. INS, 656 F.2d 469, 472 (9th Cir. 1981), citing Chung Young Chew v. Boyd, 309 F.2d 857, 866-67 (9th Cir. 1962). 8 C.F.R. 287.6 provides: "In any proceedings under this chapter, an official record or entry therein, when admissible for any purpose, shall be evidenced by an official publication thereof, or by a copy attested by the official having legal custody of the record or by an authorized deputy."

REMOVAL PROCEEDINGS - MOTION TO SUPPRESS EVIDENCE
Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. Aug. 8, 2008) (DHS violated Fourth Amendment right to search & seizure by entering noncitizens home without warrant or consent; failure to object does not amount to consent; resulting I-213 should have been suppressed), pet. reh. denied, 560 F.3d 1098 (9th Cir. Mar 27, 2009).

Tenth Circuit

CONVICTION " EXISTENCE OF CONVICTION " GOVERNMENT NEED NOT PROVE CONVICTION WAS CONSTITUTIONAL IN ORDER TO DEPORT
Waugh v. Holder, 642 F.3d 1279, 1283 (10th Cir. Jun. 22, 2011) (DHS does not need to establish that criminal counsel gave proper immigration advice under Padilla v. Kentucky in order to establish deportability), citing United States v. Adame-Orozco, 607 F.3d 647, 653 (10th Cir. 2010) (that while an alien may have the right to pursue appellate or collateral relief for an aggravated felony conviction under various provisions of state and federal law, the government need not wait until all these avenues are exhausted before deporting him.).

IMMIGRATION PROCEEDINGS - RELIEF - BURDEN OF PROOF
Garcia v. Holder, 584 F.3d 1288 (10th Cir. Oct. 27, 2009) (noncitizen ineligible for non-LPR cancellation of removal where the criminal record is unclear on the issue of whether third degree assault conviction was for a crime involving moral turpitude), rejecting Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130 (9th Cir. 2007).

EVIDENCE - FIFTH AMENDMENT - MIRANDA WARNING NOT REQUIRED PRIOR TO DHS INQUIRY CONCERNING IMMIGRATION STATUS
United States v. Lara-Garcia, ___ F.3d ___ (10th Cir. March 7, 2007) (federal agent's failure to Mirandize a lawfully detained suspect prior to inquiring about immigration status does not require suppression of that status where fingerprint evidence subsequently confirms it). http://laws.lp.findlaw.com/10th/064155.html

Eleventh Circuit

POST CON RELIEF " EFFECTIVE ORDER " USE OF VACATED CONVICTION TO ESTABLISH CONDUCT-BASED REASON TO BELIEVE GROUND OF INADMISSIBILITY
Garces v. US Atty. Gen., 611 F.3d 1337 (11th Cir. Jul. 27, 2010) (noncitizen whose drug trafficking conviction was vacated on the basis that the plea was not voluntary may still be found inadmissible for reason to believe that the noncitizen has engaged in drug trafficking, and the DHS may use police reports, the vacated conviction, and the motion to vacate itself to make a reason to believe determination; in this case, the submitted records were insufficient since the record did not show whether the noncitizen entered a plea of guilt or a plea of no contest, and the submitted police reports only made conclusions [he had engaged in drug trafficking], rather than describing a set of facts that would be sufficient to warrant such a conclusion). NOTE: This is a very good case to read on the topic of reason to believe and the admissibility of evidence in immigration proceedings.

Other

PRACTICE ADVISORY
Counsel can argue that police reports are inadmissible in removal proceedings for the following reasons: 1. Police reports are unreliable. (United States v. Johnson, ___ F.3d ___ (8th Cir. 2013). To overcome a hearsay objection, the government would need to call the officer who wrote it as a witness, subject to cross-examination. INA 240b4B. Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009) (DHS may not use evidence from absent witness unless first establishes that despite reasonable efforts it was unable to secure presence at hearing). 2. Respondent had no opportunity at the criminal level to review, object, or rebut the information contained in the report, since he never went to criminal court. 3. Matter of Arreguin, 21 I & N Dec 38, 42 (BIA 1995) ("Just as we will not go behind a record of conviction to determine the guilt or innocence of an alien, so we are hesitant to give substantial weight to an arrest report, absent a conviction or corroborating evidence of the allegations contained therein. Here, the applicant conceded that the arrest took place but admitted to no wrongdoing. Considering that prosecution was declined and that there is no corroboration, from the applicant or otherwise, we give the apprehension report little weight."). 4. It's likely triple or even quadruple hearsay, which raises due process concerns re confrontation, notice, etc. If the judge overrules this objection (which he or she will), then the next objection is that you want it excluded absent the ability to cross-examine the officer who produced it. This will also be overruled. Then object that if the judge chooses to admit the document, it must be given very little probative weight given your prior objections, and in fact, your clients testimony in-court and subject to cross examination should be admitted and seen as inherently more probative and reliable.

REMOVAL PROCEEDINGS " EVIDENCE " MOTIONS TO SUPPRESS
New LAC practice advisory, Motions to Suppress in Removal Proceedings: Fighting Back Against Unlawful Conduct by U.S. Customs and Border Protection. http://www.legalactioncenter.org/practice-advisories/motions-suppress-removal-proceedings-fighting-back-against-unlawful-conduct-cbp

BIBLIOGRAPHY " REMOVAL PROCEEDINGS " EVIDENCE " MOTIONS TO SUPPRESS
Grant, Edward R. and Allen, Patricia M., Life Does Not Always Imitate Television: The Exclusionary Rule in Immigration Proceedings" (2011).

OVERVIEW " REMOVAL PROCEEDINGS " BURDEN OF PROOF
Matter of Chawathe, 25 I. & N. Dec. 369 (AAO 2010) (burden of proof in administrative proceedings is on the respondent/applicant by the preponderance of the evidence except where a different standard is specified by law).

RELIEF - BURDEN OF PROOF
The normal burden of proof where a noncitizen applies for relief from deportation or inadmissibility is on the noncitizen: "The respondent shall have the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion." (8 C.F.R. 1240.8(d) [part 1].) However, where the government is asserting that a bar to relief exists, the government first bears a burden of production of evidence that each element of the bar exists, and then the noncitizen bears the burden of persuasion by a preponderance:

If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply. (8 C.F.R. 1240.8(d) [part 2] (Emphasis supplied.)

This regulation creates two distinct standards: one for eligibility and the favorable exercise of discretion, and a second for bars or mandatory grounds of denial.

The regulation creates a rebuttable presumption for mandatory grounds of denial. Thus, the government bears the initial burden of production to prove that the mandatory bar applies, and, absent such evidence, the respondent is not barred from relief. The Ninth Circuit held the governments burden of production was the same as the burden to prove deportability, for example, a high burden to establish respondent has an aggravated felony. Cisneros-Perez v. Gonzales, 451 F.3d 1053, 1059-60 (9th Cir. 2006).

The BIA has a slightly different approach which requires the Government to produce some evidence to satisfy its burden. See In re SK, 23 I. & N. Dec. 936, 941 (BIA 2006) (material support bar to asylum); In re RSH, 23 I. & N. Dec. 629, 640 (BIA 2003) (national security danger bar to asylum).

The Board has not defined how much evidence is sufficient to show that the evidence indicates that a bar applies. In Matter of SK, supra, the government met its burden on each element of the material support bar through "sufficient evidence" in the record. In re RSH, supra, the Board held that a "plethora" of evidence is sufficient to shift the burden of production. Although BIA uses conclusory language, there needs to be evidence for each element of the bar.

REMOVAL PROCEEDING - EVIDENCE
The language of INA 240(c)(3)(B), 8 U.S.C. 1229a(c)(3)(B), largely tracks that of a pre-existing regulation, 8 C.F.R. 1003.41, containing a list of document acceptable to be used as part of the record of conviction in determining the nature of a conviction for immigration purposes, except that Congress refused to codify subsection (d) of the regulation, a catch-all provision which had allowed for the admission of "[a]ny other evidence that reasonably indicates the existence of a criminal conviction." Because "it is generally presumed that Congress acts intentionally and purposefully" when it includes and omits "particular language," INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987); see also, Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001)(en banc); Matter of Gomez-Giraldo, 20 I & N Dec. 957, 964 n3 (BIA 1995)(Congress is "presumed to be cognizant of existing law pertinent to the legislation it enacts."), the Court should conclude that Congress intended to limit the "documents or records" which "shall constitute proof of a criminal conviction" to those set forth in INA 240(c)(3)(B), 8 U.S.C. 1229a(c)(3)(B). Thus, unless an alien admits to a conviction and thereby dispenses of the need for evidence, see, Fequierre v. Ashcroft, 279 F.3d 1325, 1327 (11th Cir. 2002) (the "aliens admission of the conviction under oath" is sufficient to establish removability), the DHS must present at least some documentary evidence from the court of conviction or the "penal institution" where the alien served his sentence.

The comments to the regulation itself made clear that rule was intended only to set forth the "types of records that are admissible" and was not intended to relax the governments burden of proof:

The standards for establishing deportability have not been relaxed, nor has the burden of proof shifted from the government to the alien. While the rule sets forth the types of records that are admissible to prove a criminal conviction, and expands the types of documents which have traditionally been submitted to establish a criminal conviction, the burden remains with the Service to prove the underlying issue of deportability by "clear, convincing, and unequivocal" evidence. To meet this burden of proof, it may be necessary for the Service to introduce evidence beyond the initial documents presented.

58 FR 38952 (July 21, 1993).

Moreover, although the catch-all provision of 8 C.F.R. 1003.41 might have allowed the government to present a "rap sheet," the comments to that regulation make clear that such a document would ordinarily be insufficient to constitute clear, unequivocal, and convincing evidence of a conviction:

One commenter suggested that the rule be expanded to include admission of official criminal history records, or "rap sheets." While a "rap sheet" may contain some evidence of a criminal conviction, it might not include the essential aspects of a record of conviction. Therefore, while an official criminal history record, or "rap sheet," may be admissible under paragraph (d) of the rule as some evidence of a criminal conviction, it lacks the essential protections that an abstract of conviction contains. The abstract, which requires specific and detailed information of a record of a criminal conviction, is intended to provide a reliable and accurate record of conviction. The abstract of conviction will originate directly from the state or court records repositories, and will be certified by both the state official who prepares the record, and the Service official who receives the record. These protections will ensure the completeness, accuracy, and reliability of the records.

58 FR 38952 (July 21, 1993).

EVIDENCE - REPRESENTING FOREIGN NATIONALS - OBTAINING EVIDENCE FROM ABROAD
http://obtainingforeignevidence.blogspot.com/

CRIM DEF - EVIDENCE - FOREIGN
See Federal Rules of Evidence 902; 18 U.S.C. 3505.

REMOVAL PROCEEDINGS - MENTAL INCOMPETENCE IMMIGRATION PROCEEDINGS - RESPONDENT'S MENTAL COMPETENCE
Munoz-Monsalve v. Mukasey,551 F.3d 1("where as here a petitioner fails to bring the possibility of incompetence to the attention of the immigration court, an IJ is not normally expected to initiate evaluative proceedings sua sponte.").

RIGHT TO REFUSE TO DISCLOSE IMMIGRATION STATUS
A party has no duty to disclose their immigration status as part of any civil suit. There are materials available that detail the right to resist disclosing such information in discovery. http://www.nilc.org/immsemplymnt/emprights/emprights101.tml Thanks to Bruce Nestor.

REMOVAL PROCEEDINGS - EVIDENCE - FOREIGN LANGUAGE DOCUMENTS
8 CFR 1003.33 (regulation requires only that translator certify the translation is accurate and correct to the best of the translator's abilities and that the person is competent to translate the document, but does not require the translator to be certified).

REMOVAL PROCEEDINGS - CONCESSION OF REMOVABILITY
The regulation at 8 C.F.R. 1240.10(c) provides that an IJ may accept a respondent's admission of the allegations and concession of the charges lodged, in lieu of ICE having to satisfy its statutory burden of proving deportability or inadmissibility. Although this mechanism essentially affords an alternative to the statutory requirement under 8 U.S.C. 1229a(c)(3)(B) that ICE establish removability by clear and convincing evidence, the regulatory language is plain that the IJ must be "satisfied" that "no questions of law or fact remain" id., and the plain language of a regulation must be given effect. Matter of Masri, 22 I. & N. Dec.1145 (BIA 1999).

When a respondent seeks to withdraw his concession, providing substantial reasons in support of his election to do so during the course of his hearing, ICE should be required to carry its statutory burden of proof. Similarly, where a criminal statute is divisible, the record must contain admissible evidence on which an IJ can rely. Cf. Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996) (holding that in-court testimony concerning respondent's actual conduct was not admissible to prove the nature of his conviction). At the very least, an effort to withdraw a concession should trigger an inquiry by the IJ before she can reasonably be "satisfied," that no questions of law or fact remain. Thanks to Lory Diana Rosenberg.

In the absence of egregious circumstances, the respondents remain bound by their attorney's original concession of removability at the February 13, 2002, master calendar hearing in New York. See, e.g., Matter of Compean, Bangaly & J-E-C-, 24 I&N. Dec. 710, 732 (A.G. 2009); see also Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986) ("petitioners are generally bound by the conduct of their attorneys, including admissions made by them, absent egregious circumstances.").Thanks to Maris J. Liss

BIBLIOGRAPHY " REMOVAL PROCEEDINGS " EVIDENCE -- EXCLUSIONARY RULE
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); Puc-Ruiz v. Holder, 629 F.3d 771, 775-80 (8th Cir. 2010); see Irene Scharf, The Exclusionary Rule in Immigration Proceedings, 12 SAN DIEGO INTL L. J. 53 (2010).

REMOVAL PROCEEDINGS " RELIEF " BURDEN OF PROOF ALERT " SANDOVAL LUA RECONSIDERED
In a pending en banc case, Young v. Holder, the court has asked for supplemental briefing on the validity of Sandoval-Lua, 499 F.3d 1121, 1131 (9th Cir. 2007) and Rosas-Castaneda v. Holder, 655 F.3d 875, 886 (9th Cir. 2011), rehg en banc denied. The court potentially could overrule these decisions. Even if the court does not, the issue could go to the Supreme Court at some point because of a split between circuits. Therefore we should assert this rule in proceedings now but strategize for what to do if it is overturned in this or another case. Visit 9th Circuit Crim/Imm Forum at: http://crimimm9thcircuit.ning.com/?xg_source=msg_mes_network

REMOVAL PROCEEDINGS " EVIDENCE " FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
A person in removal proceedings is entitled to assert his/her right against self-incrimination under the Fifth Amendment due to any potential criminal charges arising from any admission of alienage, entry without inspection, or other factual matters alleged in the Notice to Appear. Matter of Sandoval, 17 I&N Dec. 70, 72, n.1 (BIA 1979). Has your client carried his LPR card with him each and every moment since he became an LPR? If not, an admission to alienage on the stand would establish an essential element of an offense under 8 U.S.C. 304. Has he always filed a change of address within 10 days of moving? If not, admission of alienage under oath would establish an essential element of an offense under 8 U.S.C. 305. These are criminal offenses under the penalty provisions of 8 U.S.C. 306. If an answer to the question might provide a link in the chain of evidence necessary to convict the client of a criminal offense under any of the following statutes, the claim of privilege should be sustained: INA 266(a) and (b) " willful failure to register or provide change of address INA 275 " improper entry INA 276(a) " entering, attempting to enter, or being found in the US after removal IJ or DHS cannot offer immunity " only the Attorney General can in writing. Thanks to Bruce D. Nestor.