Crimes of Moral Turpitude

(C)

Burden of Proof.  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 for inadmissibility as a matter of jurisdiction.[6]  Once this is shown, the respondent may present prima facie evidence of admissibility (such as a valid visa document).[7]  The burden then shifts back to the DHS to present “some evidence” to show that the respondent is inadmissible.[8]  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.[9]  If the noncitizen respondent 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.[10]

Somewhat different rules apply to lawful permanent residents who are returning from a trip abroad.[11]  A lawful permanent resident returning from trip abroad is not generally considered an applicant for admission, and is therefore not subject to the grounds of inadmissibility.  There are six exceptions,[12] however, including an exception under which the LPR may be found inadmissible to the United States under any of the crime-related grounds of inadmissibility.[13]

            While the government bears the burden of establishing deportability for a noncitizen who has been lawfully admitted to the United States,[14] a noncitizen seeking admission bears the burden to show s/he is admissible.[15]  Since a returning lawful permanent resident is not considered an applicant for admission unless s/he fits into one of the exceptions,[16] the Government bears the burden of proof.[17]

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

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

[8] Id. at 1213.

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

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

[11] See also N. Tooby J. Rollin, Criminal Defense of Immigrants § 18.7 (4th Ed. 2007).

[12] See INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C).

[13] INA § 101(a)(13)(C)(v), 8 U.S.C. § 1101(a)(13)(C)(v).  See also Malagon deFuentes v. Gonzales, 462 F.3d 498 (5th Cir. Aug. 28, 2006) (no equal protection violation to treat LPRs inside the United States differently from LPRs seeking admission to the United States under INA § 101(a)(13)(C)), 8 U.S.C. § 1101(a)(13)(C)).

[14] INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A).

[15] INA § 240(c)(2)(A), 8 U.S.C. § 1229a(c)(2)(A).

[16] See Matter of Collado, 21 I. & N. Dec. 1061, 1064 (BIA 1998).

[17] 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)).").  See also Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir. Aug. 30, 2004); Matter of Kane, 15 I. & N. Dec. 258, 264 (BIA 1975).