(A)  Burden of Proof.  Once removability is established, the Government bears the initial burden of production to show that a statutory bar to relief may exist.[14]  Once that is met, then the noncitizen then bears the burden of showing, by a preponderance of the evidence,[15] that s/he is eligible for relief from removal, both statutorily and as a matter of discretion.[3]  At least three circuits have found that relief may be denied on the basis of criminal convictions or acts that were not charged as triggering grounds of removal in the Notice to Appear.[4]  Because the determination of whether an offense triggers removal, applying divisible statute analysis,[5] may turn upon who bears the burden of proof, it is possible that a court could find a conviction not to be an aggravated felony (for example) for purposes of proving deportability, but find that it is an aggravated felony for purposes of barring relief from removal.

 

The Ninth Circuit has held that, even though the noncitizen bears the burden of proof, if the record of conviction is inconclusive (i.e., it is impossible to determine whether the conviction for an offense that would statutorily bar relief), the conviction cannot trigger the bar.  The court stated:

 

[W]e 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. [16]

[17] 8 C.F.R. § 1240.8(d).  The BIA 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 Ninth Circuit held the government’s 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).  Thanks to Dan Kesselbrenner.

[18] Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. Aug. 28, 2007) (respondent in removal proceedings bears 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.”).

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

[14] Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. Apr. 4, 2006); Brown v. Ashcroft, 360 F.3d 346 (2d Cir. 2004); Aalund v. Marchall, 461 F.2d 710 (5th Cir. 1972).

[15] See § § 7.1-7.6, infra.

[16] Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1132 (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).

RELIEF " IMMIGRANT LEGAL RESOURCE CENTER " NEW IMMIGRATION RELIEF TOOLKIT
The ILRC has expanded and updated the free Relief Toolkit for Defenders. The purpose of the Toolkit is to help defenders quickly identify possible immigration applications or relief for which the client might be eligible. The toolkit is one of the Notes from the California Chart and Notes. http://www.ilrc.org/files/documents/17._relief_toolkit_jan_2014_final_0.pdf Thanks to Kathy Brady.

BIA

RELIEF " ADJUSTMENT OF STATUS " INA 245(i) GRANDFATHERING LIMITS
Matter of Legaspi, 25 I. & N. Dec. 328 (BIA 2010) (noncitizen is not independently grandfathered for purposes of adjustment of status under INA 245(i), simply by virtue of marriage to another noncitizen who is grandfathered under section 245(i) as the result of having been a derivative beneficiary of a visa petition).

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.

JUDICIAL REVIEW - PLAIN ERROR TEST - SUBSTANTIAL RIGHTS ARE AFFECTED WHERE THERE IS A REASONABLE PROBABILITY THAT THE OUTCOME WOULD HAVE BEEN DIFFERENT ABSENT THE ERROR
United States v. Gonzalez-Castillo, 562 F.3d 80 (1st Cir. Apr. 9, 2009) (to warrant reversal under the "plain error" test, the error must affect the defendant's substantial rights, i.e., there must exist "a reasonable probability that, but for the error, the district court would have imposed a different, more favorable sentence."); citing United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009) (quoting United States v. Gilman, 478 F.3d 440, 447 (1st Cir.2007)).

Fifth Circuit

JUDICIAL REVIEW - QUESTIONS OF FACT
Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. Apr. 2, 2009) (whether noncitizen was convicted of an offense that could be considered an aggravated felony, where elements of statute described an aggravated felony but the judgment lacked essential elements of the offense, was a question of fact over which the court lacked jurisdiction).

Eighth Circuit

RELIEF - BURDEN OF PROOF - CANCELLATION OF REMOVAL
Sanchez v. Holder, 614 F.3d 760 (8th Cir. Aug. 2, 2010) (no statutory support for petitioner's argument that the burden of proof rested on the government in this case to prove his conviction of an aggravated felony to disqualify him from eligibility for cancellation of removal). Note, this case did not cite or discuss Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007).

RELIEF - DUE PROCESS
Sanchez-Velasco v. Holder, 593 F.3d 733 (8th Cir. Jan. 20, 2010) (noncitizens have no right to due process in purely discretionary remedy of cancellation of removal, therefore noncitizen could not claim IJ violated due process by excluding witnesses).

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).

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).

Other

RELIEF - VISA WAIVER PROGRAM COUNTRIES
Countries added to Visa Waiver Program (wherein admittees waive rights to immigration hearings and relief), as of November 17, 2008, include: Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic. Federal Register, Vol. 73, No. 222, Monday, Nov. 17, 2008.