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LEVELS OF EVIDENCE IN IMMIGRATION CASES
By Joseph P. Whalen (Sunday, November 15, 2015)
The regulations tell us something about this subject matter. I wish to share what that is.
§103.2 Submission and adjudication of benefit requests.
(b) Evidence and processing.
(1) Demonstrating eligibility. An applicant or petitioner must establish that he or
she is eligible for the requested benefit at the time of filing the benefit request and
must continue to be eligible through adjudication. Each benefit request must be
properly completed and filed with all initial evidence required by applicable
regulations and other USCIS instructions. Any evidence submitted in connection
with a benefit request is incorporated into and considered part of the request.
(2) Submitting secondary evidence and affidavits—
(i) General. The non-existence or other unavailability of required evidence
creates a presumption of ineligibility. If a required document, such as a
birth or marriage certificate, does not exist or cannot be obtained, an
applicant or petitioner must demonstrate this and submit secondary
evidence, such as church or school records, pertinent to the facts at issue.
If secondary evidence also does not exist or cannot be obtained, the
applicant or petitioner must demonstrate the unavailability of both the
required document and relevant secondary evidence, and submit two or
more affidavits, sworn to or affirmed by persons who are not parties to the
petition who have direct personal knowledge of the event and
circumstances. Secondary evidence must overcome the unavailability of
primary evidence, and affidavits must overcome the unavailability of both
primary and secondary evidence.
(ii) Demonstrating that a record is not available. Where a record does not
exist, the applicant or petitioner must submit an original written statement
on government letterhead establishing this from the relevant government
or other authority. The statement must indicate the reason the record does
not exist, and indicate whether similar records for the time and place are
available. However, a certification from an appropriate foreign government
that a document does not exist is not required where the Department of
State's Foreign Affairs Manual indicates this type of document generally
does not exist. An applicant or petitioner who has not been able to acquire
the necessary document or statement from the relevant foreign authority
may submit evidence that repeated good faith attempts were made to
obtain the required document or statement. However, where USCIS finds
that such documents or statements are generally available, it may require
that the applicant or petitioner submit the required document or
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(iii) Evidence provided with a self-petition filed by a spouse or child of
abusive citizen or resident. The USCIS will consider any credible evidence
relevant to a self-petition filed by a qualified spouse or child of an abusive
citizen or lawful permanent resident under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. The self-
petitioner may, but is not required to, demonstrate that preferred primary
or secondary evidence is unavailable. The determination of what
evidence is credible and the weight to be given that evidence
shall be within the sole discretion of USCIS.
Given all of that, you might wonder what the big deal is, well, there still is a big deal
to ponder. There are a number of different descriptions of evidence that mean a lot in this
discussion but which are not listed in the regulations. Many readers will be fully aware of
some terms associated with evidence but need to have them defined, some need both
identification and definition. That is the purpose of this exercise. It is important to
confront any areas of confusion and put them out of our misery. There are many different
ways to characterize evidence. Often, people get confused. I intend to be one who adds to
that confusion initially. Eventually, I will strive to straighten things out. I will begin with
a review of the basics from the 10th Circuit. Each Circuit has its own cases but little
differences because the Supreme Court guides them all.
“II. STANDARDS OF REVIEW
We conduct a de novo review of purely legal questions. Fernandez-Vargas
v. Ashcroft, 394 F.3d 881, 884 (10th Cir. 2005), aff’d, 548 U.S. 30 (2006). The
government “has the burden of establishing by clear and convincing evidence that,
in the case of an alien who has been admitted to the United States, the alien is
[removable].” 8 U.S.C. § 1229a(c)(3)(A). 1
When reviewing a challenge to the quality and substantiality of the
evidence, “[a] court ‘does not ask itself whether it believes that the evidence’
establishes removability2 by clear and convincing evidence, but rather whether the
1 8 U.S.C. §1229a. Removal proceedings
(c) Decision and burden of proof
(3) Burden on service in cases of deportable aliens
(A) In general
In the proceeding the Service has the burden of establishing by clear and convincing evidence that, in the
case of an alien who has been admitted to the United States, the alien is deportable. No decision on
deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.
2 Or the alien proves eligibility by a “preponderance” unless otherwise stated in the controlling law. See
Matter of Chawathe, 25 I&N Dec.369 (AAO 2010).
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agency’s ‘judgment is supported by substantial evidence.’” Jimenez-Guzman v.
Holder, 642 F.3d 1294, 1298 (10th Cir. 2011) (quoting Woodby v. INS, 385 U.S.
276, 282 (1966)). In other words, we look for substantial evidence indicating the
government met its affirmative burden to establish through clear and convincing
evidence the alien was removable. Jimenez-Guzman, 642 F.3d at 1299. If the
record reveals such evidence our review is concluded. “Agency findings of fact are
conclusive unless the record demonstrates that any reasonable adjudicator would
be compelled to conclude to the contrary.” Sarr v. Gonzales, 474 F.3d 783, 788-89
(10th Cir. 2007) (internal 6 quotation marks omitted). We neither reweigh the
evidence nor assess witness credibility. Id. at 789.
The BIA issued a single-member decision. Therefore, “although we will not
affirm on grounds raised in the IJ decision unless they are relied upon by the BIA,
we are not precluded from consulting the IJ’s more complete explanation of those
same grounds.” Maatougui v. Holder, 738 F.3d 1230, 1237 n.2 (10th Cir. 2013)3
(internal quotation marks, brackets and ellipsis omitted).”
Vladimirov v. Lynch, __F.3d__ (10th Cir. 2015) No. 13-9595 November 10, 2015
At pp. 5-6
In the case of immigration benefits requests, USCIS is in a slightly different
position than ICE or CBP in removal cases; and there is more confusion in my mind
because most of the “old tried and true” cases forming immigration law “jurisprudence”
stem from cases brought against Legacy INS. The vast majority of those INS cases
involved exclusion, deportation, inadmissibility, or “removal”. I am uncertain just how
much of which of the older cases apply to recent, present, or future USCIS cases as
opposed to ICE or CBP. Does anyone know for sure? I do not think so. Certainly, cases
involving citizenship claims or denaturalization that went to the various Circuits or the
Supreme Court are still good for USCIS, but only a few employment based petition cases
exist in those venues. Most AAO jurisprudence comes from the U.S. District Courts and
old I&N Decisions from past Commissioners, Regional Commissioners, and the like.
3 Footnote 2 from Maatougui v. Holder, 738 F. 3d 1230 (10th Circuit 2013):
 The BIA used a single-member opinion to affirm the IJ's order. Thus, although "we will not affirm
on grounds raised in the IJ decision unless they are relied upon by the BIA[,] . . . we are not precluded
from consulting the IJ's more complete explanation of those same grounds." Uanreroro v.
Gonzales,443 F.3d 1197, 1204 (10th Cir.2006).
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Even though DHS, ICE, CBP, & USCIS have been in existence for a little over a
dozen years, many question remain unanswered because they have not been asked. I am
asking some of them now. Unfortunately, I do not have any definitive answers but do offer
some possibilities. Various benefits requests have various evidence standards during
initial adjudication; and still other standards upon appellate review. Determining which
is which is where confusion arises.
Consider the following in light of the above questions and good luck.
Prima facie evidence.
Preponderance of the evidence.
Clear and convincing evidence.
Quantitative vs. Qualitative analysis.