Summary
This First Circuit Court of Appeals opinion reviews a Board of Immigration Appeals decision regarding the standard of proof required for the government to establish alienage in removal proceedings. Relying on its recent decision in Rosa v. Bondi, the court holds that the "clear, unequivocal, and convincing" standard applies to individuals charged with inadmissibility and imposes a higher burden than the "clear and convincing" standard used by the agency. Consequently, the court grants the petition for review, vacates the BIA's order, and remands the case for further proceedings consistent with this higher evidentiary standard.
Topics
Practice areas
Questions Presented
- Whether the government must prove the alienage of persons charged with inadmissibility by clear, unequivocal, and convincing evidence rather than merely clear and convincing evidence.
- Whether clear, unequivocal, and convincing evidence imposes a higher burden than clear and convincing evidence.
- Whether the EARM summaries were sufficiently reliable to satisfy the applicable burden of proof.
Holdings
- When individuals are charged with inadmissibility, the government must prove their alienage by clear, unequivocal, and convincing evidence.
- The clear, unequivocal, and convincing standard is more demanding than the clear and convincing standard.
- The court did not decide whether the EARM summaries satisfied the higher standard of proof; that determination was remanded to the agency in the first instance.
Key quotations
“We agree with the Borges family that the agency should have applied the "clear, unequivocal, and convincing" standard and that this standard is more demanding than the "clear and convincing" standard.” (slip op. at 7)
“Thus, Rosa controls here.” (slip op. at 11)
“For all these reasons, we grant the petition, vacate the BIA's order, and remand to the agency for further proceedings consistent with this opinion.” (slip op. at 12)
Factual background
The Borges family, Brazilian nationals, entered the United States near San Luis, Arizona, in October 2021 and were placed in removal proceedings the next day. DHS submitted EARM summaries describing each family member and the encounter with Customs and Border Protection as evidence of alienage. The IJ found the summaries sufficient to establish alienage by clear and convincing evidence and sustained charges under INA section 212(a)(6)(A)(i), while the BIA affirmed.
Procedural history
The Immigration Judge initially denied petitioners' motion to terminate and ordered their removal. The BIA remanded for a full decision explaining the evidentiary basis and addressing the motion to terminate. On remand, the IJ again denied termination and sustained the removability charges based on EARM summaries and the clear-and-convincing standard. The BIA adopted and affirmed the IJ's decision, and petitioners timely sought review in the First Circuit.
Remand instructions
Vacate the BIA's order and remand to the agency for further proceedings, including determining in the first instance whether the EARM summaries establish petitioners' alienage under the clear, unequivocal, and convincing standard.