Standards of Proof in Removal Proceedings: Know Your Rights

If you are a foreign national in removal proceedings, the burden of proof you will face is different depending upon how you entered the United States and what your immigration status is. Depending upon these factors, you may be treated in two different ways: like you are innocent until proven guilty, or guilty until proven innocent. Note that although we prefer not call people “aliens,” we use the term in this discussion for clarification and correctness purposes because it is the actual legal term used in the law and in US courts.

Removal is an adversary proceeding that takes place before the US Immigration Court upon charges filed by the US government against a foreign national (or “alien”) on the basis that the person should be removed from the United States. A foreign national in removal proceedings does not have the same rights and protections that an accused criminal has during a criminal trial. The immigration court is a civil court, not a criminal court, and certain constitutional protections do not apply such as certain Fourth Amendment due process protections like the exclusionary rule for unlawfully obtained evidence and prohibition against unlawful search and seizure.

In a criminal court, the standard of proof is that the government must prove guilt “beyond a reasonable doubt.” This standard of proof is not used in immigration courts because it is not a criminal court, and there are several different standards of proof depending upon the circumstances of the case. There are three categories for which the standards vary: (1) admitted aliens, (2) arriving aliens, and (3) aliens present without admission or parole.

Being admitted means that the person has already officially entered the United States legally. If you are an admitted alien, the government must prove that the removal charge is true by the standard of “clear and convincing evidence.” This standard is less than beyond a reasonable doubt, but more than the preponderance of evidence standard that is typically used in civil courts.

Being an arriving alien means that the person is currently in the process of entering the United States, such as a US immigration checkpoint at the border or an airport. If you are an arriving alien, the government does not have to prove that the charge of removability is true. On the contrary, you must present evidence that proves “clearly and beyond a doubt” that you are entitled to be admitted into the United States.

Being present without admission or parole means that the person has entered the United States without permission, such as having surreptitiously crossed the border without being checked and admitted by the US Customs and Border Patrol. If you are an alien present without admission or parole, you must present evidence that proves “by clear and convincing evidence” that you are lawfully present in the United States pursuant to a prior admission.

If you are an arriving alien or present without admission or parole, and a lawful permanent resident (green card holder), the government must prove that you are removable by clear, unequivocal, and convincing evidence. This standard is even harder to prove than the beyond a reasonable doubt standard used in criminal trials. If you are an admitted alien with a green card, the government must prove you are removable by “clear and convincing evidence.”

Realistically, these issues are not often disputed of whether you lawfully entered the United States or whether you have a valid green card or other lawful immigration status. If it’s likely the court will ultimately decide that you should be removed, the better strategy may be to concede removability and request a discretionary waiver. Although it may be best in most cases to admit that you are removable and ask for the waiver, it’s important to know what your rights are first.