The U.S. Court of Appeals for the Ninth Circuit reversed course this week holding that a record of conviction that inconclusively identifies whether a migrant is removable must be viewed as failing to prove removability. Almanza-Arenas v. Holder, No. 09-71415, slip. op. (9th Cir. Nov. 10, 2014). This is a significant change for the Ninth Circuit, but also an important move away from the BIA’s position which it adopted when Almanza-Arenas’s case was before it. Matter of Almanza-Arenas, 24 I&N Dec. 771, 774 (BIA 2009).
Here’s how I explain this situation in my forthcoming book Crimmigration Law, to be published by the American Bar Association next summer:
Whose obligation is it to show that an applicant for cancellation meets the statutory eligibility requirements? The INA leaves no room to doubt that the burden rests on the migrant’s shoulders. A regulation adds that if the available evidence indicates that a basis for mandatory denial of relief “may apply,” the migrant must show by a preponderance of the evidence that it does not. This means, for example, that a migrant seeking cancellation of removal for LPRs must provide enough evidence to convince an immigration judge that she has not been convicted of an aggravated felony. Similarly, an applicant for cancellation for non-LPRs must show that she has not been convicted of a controlled substance offense since that is an offense listed in INA § 212(a)(2). To do this, the applicant must be sure to meet any corroboration requirements that the immigration judge imposes or demonstrate that she does not have access to the necessary evidence and cannot reasonably obtain it.
Carrying the burden always makes obtaining relief more difficult for migrants. It gets truly complicated, however, when a migrant is unable to gather enough evidence to convince an immigration judge that the preponderance of the evidence indicates she is not ineligible for relief. The Board takes the position that an inconclusive record is insufficient to meet the applicant’s burden. A number of federal courts agree. This is true even if the applicant submits every criminal history document kept by the court in which she was convicted, thus there can be no claim that she was to blame for not finding additional evidence. At least two courts, however, takes the opposite position: an inconclusive record of conviction is sufficient to meet the applicant’s burden. Perhaps the Supreme Court will clarify which is the proper path to take, but until that happens attorneys need to be aware of the circuit case law that applies in their jurisdiction. Meanwhile, it is worth noting that the BIA’s position leaves some ambiguity. In Matter of Almanza-Arenas, the Board explained, “the respondent did not submit the requested documentation at the resumed hearing and gave no reason for failing to do so.” The Board does not hint at what kind of explanation would have been sufficient, but its language suggests that part of the fatal flaw in Almanza-Arenas was his failure to provide any explanation. The practical effect of the BIA’s position and this circuit split is that immigration defense attorneys should be quite careful about counseling clients to concede removal when a sound argument otherwise is available. No matter how strong the migrant’s argument for cancellation of removal may be, conceding removal has the possibility of entangling her when the burden shifts to her to show she is eligible for relief and the conviction records available are inconclusive.
Before the Ninth Circuit’s decision this week, three circuits had taken a position similar to the BIA’s. Now the circuit split is evenly matched: the Fourth and Tenth Circuits agree with the BIA, while the Ninth and Second disagree. See Salem v. Holder, 647 F.3d 111, 116 (4th Cir. 2011) (which I’ve blogged about here); Garcia v. Holder, 584 F.3d 1288, 1289-90 (10th Cir. 2009); Martinez v. Mukasey, 551 F.3d 113, 121 (2nd Cir. 2008).
Of course, there’s always the possibility that the government will request rehearing by the full Ninth Circuit in an attempt to return to its earlier position. This is a very real possibility given that the earlier decision, Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), was issued by the Ninth Circuit sitting en banc.
Find this information useful? Then let others know about crImmigration.com, as well as César’s Twitter, Facebook, and LinkedIn pages. And to make sure you don’t miss an update, subscribe to the blog by entering your email address in the subscription box that appears on every page.