More thoughts on burden shifting


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More thoughts on burden shifting

  1. 1. More Thoughts on Burden Shifting By Joseph P. Whalen (May 16, 2012)USCIS adopted Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)1 prior to itbecoming a formally published Precedent. When that “adoption” occurred itspurred a Policy Memorandum. 2 In that memo, USCIS reiterated a concept drawnfrom Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966)3. In explaining theconcept, the memorandum stated: “(c) Burden of Proof and Standard of Proof. The burden is on the petitioner to establish that he or she is eligible for the benefit sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). This means that if an alien seeking a benefit has not shown eligibility, the application should be denied. The government is not called upon to make any showing of ineligibility until the alien has first shown that he is eligible. You may contrast this in your mind with a criminal case or with a removal hearing in which the government must first prove its case. Once an applicant has met his or her initial burden of proof, he or she can be said to have made a “prima facie case.” This means that the applicant has come forward with the facts and evidence which show that, at a bare minimum, and without any further inquiry, he or she has initial eligibility for the benefit sought. This does not mean that your inquiry is over. An alien may have established initial eligibility, but it is up to you to determine if there are any discretionary reasons why an application should be denied, or if there are any facts in the record (including facts developed during the course of the adjudicative proceedings, such as during an interview) which would make the applicant ineligible for the benefit. If such adverse factors do exist, it is again the applicants burden to overcome these factors.” January 11, 2006, Memo at pp. 1- 2 stating revision to AFM 11.1(c).Matter of Brantigan, held: In visa petition proceedings the burden of proof to establish eligibility for the benefit sought rests with the petitioner, and in the absence of proof of the legal termination of a U.S. citizen petitioners prior marriage, reliance on the presumption of validity accorded by California law to his subsequent ceremonial marriage in that State to beneficiary is not satisfactory evidence of the termination of his prior marriage and is insufficient by itself to sustain petitioners burden of proof of a valid marriage on which to accord beneficiary nonquota status. [Emphases added.]1
  2. 2. In Brantigan, the petitioner had not met an initial burden of proof and had notmade a “prima facie case”. That particular case was remanded for the purpose ofallowing the petitioner to offer more evidence in order to meet the initial burden ofproof.The demonstration of a prima facie case is but an initial step in some contexts.The precise weight of the evidence offered initially varies and may serve differentpurposes. • In the context of filing for adjustment of status, if one meets a minimal requirement as to initial evidence, then they are afforded an interim benefit, namely work authorization during pendency of the adjustment application adjudication process. • An asylum seeker must meet a one-year filing deadline or else an additional showing must be made in order to overcome the failure to do so. • An I-130 petitioner may need to demonstrate the bona fide nature of a prior marriage if that prior marriage was the source of his/her own immigration status in the United States.There are further consideration as to possibility of eligibility for a benefit or theplausibility of eligibility for relief as opposed to the probability of success. Thesediffering levels arise at different times in different contexts.The currently topical issue of “burden shifting” has arisen with regard to petitionsfor aliens of extraordinary ability. The two-step analysis derived from the NinthCircuit case of Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) has renewed thediscussion. This has been further fueled by the “USCIS Administrative AppealsOffice: Request for Amicus Curiae Briefs” of August 18, 20114. That request hasrecently resulted in the posting of briefs on the agency’s website on May 10, 2012.USCIS also made it known that they would eventually be posting these briefs in itsEngagement on the subject on January 18, 2012. USCIS posted the briefs withoutnotice and asserts that they were inadvertently posted prematurely. I am awaitingany follow-up. I guess we’ll just have to wait some more!4