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joseph.whalen774@gmail.com Page 1 of 4
LEVELS OF EVIDENCE IN IMMIGRATION CASES
By Joseph P. Whalen (Sunday, November 15, 2...
joseph.whalen774@gmail.com Page 2 of 4
(iii) Evidence provided with a self-petition filed by a spouse or child of
abusive ...
joseph.whalen774@gmail.com Page 3 of 4
agency’s ‘judgment is supported by substantial evidence.’” Jimenez-Guzman v.
Holder...
joseph.whalen774@gmail.com Page 4 of 4
Even though DHS, ICE, CBP, & USCIS have been in existence for a little over a
dozen...
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LEVELS OF EVIDENCE IN IMMIGRATION CASES

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LEVELS OF EVIDENCE IN IMMIGRATION CASES

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LEVELS OF EVIDENCE IN IMMIGRATION CASES

  1. 1. joseph.whalen774@gmail.com Page 1 of 4 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 statement.
  2. 2. joseph.whalen774@gmail.com Page 2 of 4 (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).
  3. 3. joseph.whalen774@gmail.com Page 3 of 4 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): [2] 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).
  4. 4. joseph.whalen774@gmail.com Page 4 of 4 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.  Initial evidence.  Specific evidence.  Primary evidence.  Secondary evidence.  Substantial evidence.  Preponderance of the evidence.  Clear evidence.  Clear and convincing evidence.  Corroborating evidence.  Rebuttal evidence.  Reasonable adjudicator.  Quantitative vs. Qualitative analysis.  Compelling evidence.

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