Immigration Law

Recent Posts

CA1 on Bond, Burden of Proof: Hernandez-Lara v. Lyons
Posted on 20 Aug 2021 by Daniel M. Kowalski

Hernandez-Lara v. Lyons "[W]e hold that, in order to continue detaining Hernandez under section 1226(a), due process requires the government to either (1) prove by clear and convincing evidence that she poses a danger to the community or (2) prove... Read More

CA9 on Burden of Proof: Romero v. Garland
Posted on 2 Aug 2021 by Daniel M. Kowalski

Romero v. Garland "Romero had been admitted before he applied for adjustment of status. Thus, he is not now an “applicant for admission,” and therefore the “clearly and beyond doubt” burden does not apply. Rather, the “preponderance... Read More

Expert: Supreme Court Decision Tightens Burden of Proof in Immigration Court
Posted on 5 Mar 2021 by Daniel M. Kowalski

Nina Totenberg, NPR, Mar. 4, 2021 "The U.S. Supreme Court on Thursday [ Pereida v. Wilkinson ] made it more difficult for undocumented immigrants who have lived in the U.S. for a long time to fight deportation. ... By putting the burden on Pereida... Read More

Supreme Court of Categorical Approach: Pereida v. Wilkinson
Posted on 4 Mar 2021 by Daniel M. Kowalski

Pereida v. Wilkinson (5-3) Majority : "Under the INA, certain nonpermanent aliens seeking to cancel a lawful removal order must prove that they have not been convicted of a disqualifying crime. The Eighth Circuit correctly held that Mr. Pereida... Read More

CA4 on 'Clear and Convincing Evidence' - Mauricio-Vasquez v. Whitaker
Posted on 13 Dec 2018 by Daniel M. Kowalski

Mauricio-Vasquez v. Whitaker - "We consider a single question: Whether the Immigration Judge and the Board correctly determined, by clear and convincing evidence, that Mauricio-Vasquez was admitted to the United States in 2008. ... In our view, any... Read More

En Banc CA9 on Burden of Proof, Citizenship: Mondaca-Vega III
Posted on 15 Dec 2015 by Daniel M. Kowalski

Is the 84-year-old petitioner a native-born U.S. citizen or a deportable Mexican? A deeply-divided en banc court denied the petition for review. Mondaca-Vega III, Dec. 15, 2015 . Read More

CA6 on Degree, Burden of Proof: Ward v. Holder
Posted on 16 Aug 2013 by Daniel M. Kowalski

Maris J. Liss writes: "We had a nice win in the 6th Circuit today, Ward v. Holder . 1. The Court held that "clear, unequivocal, and convincing" is a very high standard and close to the standard in criminal proceedings. The government... Read More

BIA on Bosnian War, Persecutor Bar, Evidence, Burden of Proof: Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017)
Posted on 18 May 2017 by Daniel M. Kowalski

Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017) - Where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of an application for relief may apply, the alien bears the burden... Read More

CA9 on Burden of Proof: Medina-Lara v. Holder
Posted on 23 Sep 2014 by Daniel M. Kowalski

"The government has failed to carry its burden to show by clear and convincing evidence that Medina has been convicted of an aggravated felony or a controlled substance offense. Similarly, Supreme Court case law issued subsequent to the agency action... Read More

CA7 (Posner) on Burden of Proof: Lopez-Esparza v. Holder
Posted on 23 Oct 2014 by Daniel M. Kowalski

"Our ground for setting aside that ruling is not that the administrative law judge erred in finding that Lopezā€Esparza had failed to carry his burden of proof, but that the judge applied the wrong standard—the standard, of his invention, that... Read More

CA7 on Burden of Proof: Hernandez Lara v. Lynch
Posted on 19 Jun 2015 by Daniel M. Kowalski

"Hernandez testified at the removal hearing that he had entered his marriage in good faith and the government offered no evidence to the contrary. Without making a credibility finding, the immigration judge determined that Hernandez’s marriage... Read More

CA9 to Hear En Banc CAT Claim/Internal Relocation Burden of Proof Issue
Posted on 31 Jul 2014 by Daniel M. Kowalski

"The U.S. Court of Appeals for the Ninth Circuit ordered that Maldonado v. Holder be heard en banc. The case was submitted on the briefs in December 2013, then the panel, without issuing a decision, issued this order in April: "Pursuant to... Read More

Unpub. BIA on Burden of Proof, Police Report, Silva-Trevino Step 3: Matter of Hernandez Avila
Posted on 18 Apr 2013 by Daniel M. Kowalski

"At issue in this case was whether the respondent's conviction in violation of California Penal Code § 653w(a) (failure to disclose origin of a recording or audiovisual work) renders him removable under section 237(a)(2)(A)(i) of the Immigration... Read More

CA9 on Burden of Proof, Custody: Medina-Lara v. Holder
Posted on 26 Aug 2014 by Daniel M. Kowalski

"For reasons to be set forth in a disposition which will follow in due course, we grant Medina–Lara’s petition for review because the government did not meet its burden to show that his California convictions constitute predicate offenses... Read More

CA6 on NACARA, Burden of Proof: Lopez v. Sessions
Posted on 22 Mar 2017 by Daniel M. Kowalski

Lopez v. Sessions, Mar. 21, 2017 - "Marcial Lopez, a native and citizen of Guatemala, contests a decision by the Board of Immigration Appeals that prohibits him from staying in this country. Under the immigration laws, it usually counts against the... Read More