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Immigration Court and the Department of Homeland Security

Here is an excerpt of an article I recently completed on immigration court for the Johnson County Bar Association Bar Letter:

Immigration Court and the Department of Homeland Security

DHS is a cabinet department of the U.S. government, and is comprised of the United States Customs and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE).  Pub.L. 107–296, 116 Stat. 2135.  ICE is the agency responsible for enforcing the nation’s immigration laws by effecting the removal of removable aliens from the United States.  In practical terms, ICE agents and prosecutors identify, arrest, and prosecute aliens who are present in the country in violation of U.S. immigration laws.  Individuals (“respondents”) placed into removal proceedings by ICE typically appear before an Immigration Judge in Immigration Court.  The Executive Office for Immigration Review (EOIR), an office of the Department of Justice, is tasked with administering the fifty-nine Immigration Courts throughout the United States.  Immigration Courts are administrative courts, presided over by Article I administrative judges.

Evidentiary Considerations

When a non-citizen alien is placed into removal proceedings, his or her immigration status dictates where the evidentiary burden of proof lies.  If the respondent is charged with deportability, DHS must establish by “clear and convincing evidence” that the respondent is deportable.  8 C.F.R. §1240.8(c).  However, a respondent may be required to introduce evidence to rebut DHS’ prima facie case, particularly if the relevant facts of the case are within the respondent’s “particular knowledge and control.”  Matter of Vivas, 16 I&N Dec. 68 (BIA 1977).

Respondents who are physically present in the U.S. without having been lawfully inspected and admitted (i.e., “undocumented aliens”) bear a significantly heavier evidentiary burden in Immigration Court.  In such cases, DHS must first establish alienage.  8 CFR §1240.8(c).  Once DHS has proved that the respondent is a non-citizen alien, the respondent must prove either (1) by clear and convincing evidence that he or she was previously inspected and is lawfully present in the U.S., or (2) that he or she is “clearly and beyond a doubt” entitled to admission.  8 CFR §1240.8(c).  A similar burden exists in cases where DHS commences removal proceedings upon a respondent’s arrival in the U.S. or after the revocation or expiration of immigration parole.  DHS must first produce “some evidence” that the respondent is inadmissible.  If DHS carries this burden, the respondent must prove that he or she is “clearly and beyond a doubt” entitled to be admitted to the United States and is not inadmissible.  8 CFR §1240.8(b); INA §240(c)(2).

The Federal Rules of Evidence are not applicable in removal proceedings, and admissibility of evidence is favored.  Longoria-Castaneda v. INS, 548 F.2d 233 (8th Cir).  The Board of Immigration Appeals (BIA) has held that “[d]eportation and [r]emoval hearings are administrative proceedings that are civil in nature . . .[d]ue process in such a proceeding ordinarily does not require adherence to judicial rules of evidence unless deviation would make the proceeding fundamentally unfair . . . [t]he sole criterion in appraising documentary evidence lawfully obtained is whether it has probative value and whether its use is consistent with a fair hearing.”  Matter of Lam, 14 I&N Dec. 168 (BIA 1972).  Hearsay evidence is admissible unless its use is “fundamentally unfair.”  Matter of Grijalva, 19 I&N Dec. 713 (BIA 1988).

Once published, the full article can be found here: http://www.jocobar.org/displaycommon.cfm?an=4

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