Why “On or About” is Not “Clear and Convincing”

"The Immigrant & Refugee Appellate Center (IRAC) recently received a favorable decision from the Board of Immigration Appeals on a technical but important issue for many noncitizens facing removal: whether a criminal indictment stating that an offense occurred “on or about” a particular date is sufficient to demonstrate that the offense actually occurred on that date. Given the inherent ambiguity of the phrase “on or about,” the Board agreed that the government failed to establish by clear and convincing evidence that the respondent committed the offense on the date listed in the indictment. (The decision is embedded below and can be downloaded at this link.)

The respondent in the case is a lawful permanent resident who has lived in the United States for more than twenty years. Earlier this year, he was placed in removal proceedings after returning from a trip abroad due to a criminal conviction that occurred more than a decade before. The government alleged that the respondent’s offense was a crime involving moral turpitude, thereby rendering him inadmissible under Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA). The respondent’s attorney, Susan Pai, argued before the Immigration Judge that the respondent qualified as a “youthful offender” under Section 212(a)(2)(A)(ii)(I), which creates an exception to the aforementioned ground of removability for certain respondents who committed the offense before turning 18. (The judge, who apparently misconstrued the argument, ordered the respondent removed without deciding the question.)

On appeal, IRAC argued that the government possessed the burden of proving that the respondent was 18 when the crime was committed, and that the evidence in the record failed to satisfy the government’s burden. According to a copy of the criminal indictment submitted by the government, the offense occurred “on or about” April 14, 1999, only two days after the respondent’s 18th birthday. In our brief to the BIA, we noted that prosecutors use the phrase “on or about” in criminal indictments specifically to avoid having to demonstrate that the offense occurred on a particular date. We also cited numerous cases involving indictments that alleged offenses to have taken place “on or about” a date that was months from the actual date of commission.

Agreeing with our contentions, Board Member John Guendeslberger stated:

As noted by the respondent on appeal, his indictment for this offense states in an ambiguous fashion that the crime was committed “on or about” April 14, 1999, around the time of his 18th birthday, thus raising the issue whether the exception to the removal charge for youthful offenders may be applicable (Brief at 13-14). Because the indictment raises the possibility that the exception applies, we agree with the respondent that the fact of conviction alone does not constitute clear and convincing evidence sufficient for the DHS to meet its burden of proof that he is subject to removal on this basis.

In addition to the youthful offender exception, the precise date on which a criminal offense took place matters in other provisions of the INA. For example, under Section 237(a)(2)(A)(i)(I), noncitizens may be deported if they are convicted of a crime involving moral turpitude that was “committed within five years” of the date of admission. Here too, because the government would carry the burden of establishing removability, an indictment alleging an offense occurred “on or about” a date narrowly inside the cut-off period would not constitute clear and convincing evidence that the offense occurred on that date.

Some practitioners might be concerned about the implications of this argument for noncitizens who seek cancellation of removal. Under Section 240A(d)(1)(B) of the INA (also known as the “stop-time rule”), the accrual of continuous residence or physical presence is deemed to end “when the alien has committed an offense” rendering them removable under certain other provisions. Because respondents are required to demonstrate their eligibility of relief from removal, practitioners might worry that a criminal indictment alleging an offense occurred “on or about” a date falling just outside the seven- or ten-year period might not be sufficient to meet their burden.

Importantly, however, the burden on the government to establish removability is higher than the burden on respondents seeking relief from removal. Whereas the government is required to demonstrate noncitizens’ removability by “clear and convincing” evidence, respondents need only establish their eligibility for relief removal from removal by a “preponderance of the evidence.” See 8 C.F.R. 1240.8(d). Thus, for purposes of the stop-time rule, an indictment alleging an offense occurred “on or about” a particular date falling shortly after the seven- or ten-year period should be sufficient—absent evidence to the contrary—to demonstrate a respondent’s eligibility." - Ben Winograd, Nov. 11, 2013.