The BIA recently held that the government bears the burden of showing that a returning LPR is seeking admission and that an accessory after the fact conviction involves moral turpitude only if the underlying crime does. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) (Pauley, Greer, and Wendtland, Board Members). Board Member Pauley wrote the panel’s decision.

This case involved an LPR who was returning from a trip abroad. Matter of Rivens, 25 I&N Dec. at 624. Rivens had previously pleaded guilty to New York’s offering a false instrument for filing offense, NY Penal § 175.30, and federal accessory after the fact, 18 U.S.C. § 3. Upon return, DHS charged him as inadmissible for having been convicted of a crime involving moral turpitude. Matter of Rivens, 25 I&N Dec. at 624.

Despite the fact that LPRs are regularly placed in removal proceedings and charged as inadmissible, the BIA had never decided whether the government or the noncitizen respondent bears the burden of showing that the grounds of inadmissibility apply.

It is worthwhile to remember that INA § 101(a)(13)(C) provides that an LPR “shall not be regarded as seeking an admission into the United States for purposes of the immigration laws” unless one of six enumerated exceptions apply. One of those exceptions, INA § 101(a)(13)(C)(v), includes instances in which the LPR “has committed an offense identified in section 212(a)(2).” In turn, § 212(a)(2)(A)(i)(I) provides that anyone who has committed a crime involving moral turpitude is inadmissible.

Whether an individual is subject to inadmissibility or deportation matters because it is the government’s burden to prove deportability while it is the noncitizen’s burden to prove admission. INA § 240(c)(2).

Because “the Act remains silent with respect to the burden and standard of proof required to determine that an alien is an ‘applicant for admission’,” the Board turned to its thirty-five year history of imposing the burden on the government to decide which party should bear the burden. Matter of Rivens, 25 I&N Dec. at 625 & n.2. “[W]e find no reason to depart from our longstanding case law holding that the DHS bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident is to be regarded as seeking an admission.” Matter of Rivens, 25 I&N Dec. at 625.

The end result is that it is up to DHS to provide clear and convincing evidence—a standard that is more stringent than the preponderance of the evidence standard typical of civil proceedings but less stringent than the beyond a reasonable doubt standard of criminal proceedings—that a returning LPR is an applicant for admission.

The BIA then went on to hold that accessory after the fact involves moral turpitude only if the “underlying or substantive crime” involves moral turpitude. Matter of Rivens, 25 I&N Dec. at 627. Since the IJ did not perform such an inquiry, the BIA remanded. Matter of Rivens, 25 I&N Dec. at 630.