Criminal Defense of Immigrants
§ 17.9 D. Burdens of Proof
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In removal proceedings, the DHS bears the initial burden, as a matter of jurisdiction, of showing that the respondent is not a citizen or national of the United States and may be subject to removal. When charged under a ground of deportation, the burden remains with the government to show by clear and convincing evidence that the noncitizen is deportable. Prior case law required the immigration authorities to show deportability by “clear, unequivocal and convincing evidence.” This standard is still widely cited in judicial decisions.
In deportation proceedings, the burden is the same regardless of whether the noncitizen is charged with a conviction-based ground of deportation or a conduct-based ground.
The burden of proof is different in inadmissibility proceedings and where the noncitizen is seeking immigration relief following a finding of removability. For a discussion of other burdens of proof, see § § 15.26, infra.
 Murphy v. INS, 54 F.3d 605, 608-609 (9th Cir. 1995).
 INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 240(c)(3)(A).
 Woodby v. INS, 385 U.S. 276 (1966).
 See, e.g., Pickering v. Gonzales, 465 F.3d 263, 268 (6th Cir. Oct. 4, 2006).
 See § § 18.6-18.7, infra.
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)).
ADMISSIBILITY - ABANDONMENT OF LPR STATUS - BURDEN
Matadin v. Mukasey, ___ F.3d ___ (2d Cir. Oct. 8, 2008) (petition for review granted, reversing removal order, where agency erroneously assigned burden of proof of abandonment of LPR status to noncitizen, where law required DHS to prove it by clear, unequivocal and convincing evidence).
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.")