Criminal Defense of Immigrants


§ 18.6 C. Burdens of Proof

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The DHS bears the initial burden of showing that the respondent is not a citizen or national of the United States and may be subject to removal as a matter of jurisdiction.[30]  Once this is shown, the respondent may present prima facie evidence of admissibility (such as a valid visa document).[31]  The burden then shifts back to the DHS to present “some evidence” to show that the respondent is inadmissible.[32] Generally, noncitizens who are considered applicants for admission then bear the ultimate burden of proving, “clearly and beyond doubt” that they are entitled to be admitted and are not inadmissible to the United States.[33]  If the noncitizen respondent ultimately fails to show s/he is admissible to the United States, the respondent again bears the burden of showing that s/he is eligible for relief from removal both statutorily and as a matter of discretion.[34]


Somewhat different rules apply to lawful permanent residents who are returning from a trip abroad,[35] and to those charged with inadmissibility because the DHS has “reason to believe” the noncitizen (or a family member), is or has engaged in certain activities, such as drug trafficking,[36] money laundering,[37] and trafficking in persons.[38]  For a discussion of other burdens of proof, see § 15.26, infra.

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

[31] See Pazcoguin v. Radcliffe, 292 F.3d 1209, 1212 (9th Cir. 2002).

[32] Id. at 1213.

[33] INA § 240(c)(2)(A), 8 C.F.R. § 240(c)(2)(A).

[34] INA § 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A).

[35] See § 18.7, infra.

[36] See § § 21.6-21.7, supra.

[37] See § 18.23, infra.

[38] See § 18.25, infra.




Matter of Kazemi, 19 I&N Dec. 49, 51 (BIA 1984) (We have long held that an application for admission to the United States is a continuing application and admissibility is determined on the basis of the law and the facts existing at the time the application is finally considered.) (emphasis added); Matter of Ching and Chen, 19 I&N Dec. 203 (BIA 1984); Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992).