Criminal Defense of Immigrants

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.[95]  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.[96]  Prior case law required the immigration authorities to show deportability by “clear, unequivocal and convincing evidence.”[97]  This standard is still widely cited in judicial decisions.[98]

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[99] 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.

[95] Murphy v. INS, 54 F.3d 605, 608-609 (9th Cir. 1995).

[96] INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 240(c)(3)(A).

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

[98] See, e.g., Pickering v. Gonzales, 465 F.3d 263, 268 (6th Cir. Oct. 4, 2006).

[99] See § § 18.6-18.7, infra.