A. In General
B. Burden of Proof and Presumptions
1. Deportation/Removal Proceedings - Deportable
2. Exclusion/ Removal Proceedings - Inadmissable
3. Rescission Proceedings
4. In-Absentia Proceedings
5. Relief From Removal
6. Credibility Findings
II. Specific Topics in Evidence
A. Documentary Evidence
B. Admissions Made By Counsel
C. Testimonial Evidence
D. The Exclusionary Rule for Evidence Obtained in
Violation of the
Fourth Amendment Prohibition Against Unlawful Search
E. Evidence Obtained in Violation of the Due Process
Clause of the Fifth
F. The Doctrine of Equitable Estoppel
G. The Doctrine of Collateral Estoppel or Res Judicata
H. Administrative Notice
I. Items Which Are Not Evidence
I. OVERVIEW: Relevance and fundamental fairness are
the only bars to admissibility of evidence in deportation cases. Matter
of Ponce-Hernandez, 22 I&N 784 (BIA 1999); Matter of Toro, 17
I&N Dec. 340 (BIA 1980).
A. IN GENERAL
1. The strict rules of evidence are not applicable
in deportation proceedings. Matter of Wadud, 19 I&N 182 (BIA 1984).
Immigration proceedings are not bound by the strict rules of evidence.
Baliza v. INS, 709 F.2d 1231 (9th Cir. 1983); Dallo v. INS, 765 F.2d
581 (6th Cir. 1985); Longoria-Castaneda v. INS, 548 F.2d 233 (8th
Cir.), cert. denied, 434 U.S. 854 (1977).
BIA: Deportation and Removal hearings are administrative
proceedings that are civil in nature. Due process in such a proceeding
ordinarily does not require adherence to judicial rules of evidence
unless deviation would make the proceeding fundamentally unfair. The
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).
Circuits: Administrative proceedings are not bound
by the strict rules of evidence. Baliza v. INS, 709 F.2d 1231 (9th
Cir. 1983); Dallo v. INS, 765 F.2d 581 (6th Cir. 1985); Longoria-Castaneda
v. INS, 548 F.2d 233 (8th Cir.), cert. denied, 434 U.S. 853 (1977).
2. The general rule with respect to evidence in
immigration proceedings favors admissibility as long as the evidence
is shown to be probative of relevant matters and its use is fundamentally
fair so as not to deprive the alien of due process of law. Matter
of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980)), Matter of Toro,
17 I&N Dec. 340 (BIA 1980); Matter of Lam, 14 I&N Dec. 168
(BIA 1972); Baliza v. INS, 709 F.2d 1231 (9th Cir. 1983); Tashnizi
v. INS, 585 F.2d 781 (5th Cir. 1978); Trias-Hernandez v. INS, 528
F.2d 366 (9th Cir. 1975); Marlowe v. INS, 457 F.2d 1314 (9th Cir.
a. Relevant means evidence having any tendency to
make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without
the evidence. Fed.Evid.R. 401.
3. 8 C.F.R. §§1240.7(a) and 1240.46(c)
provide that an Immigration Judge "may receive in evidence any
oral or written statement that is material and relevant to any issue
in the case previously made by the respondent or any other person
during any investigation, examination, hearing, or trial."
a. However, 8 C.F.R. § 1003.19(d) provides
that consideration by an Immigration Judge of an application or request
regarding custody or bond shall be separate and apart from, and shall
form no part of, any deportation or removal hearing or proceeding.
Therefore, it would seem that an Immigration Judge may be precluded
from considering any evidence from a bond hearing in the course of
a hearing on removability or deportability or relief from deportation
unless, of course, the evidence is reintroduced and received in the
deportation or removal hearing. DHS attorneys may introduce evidence
and question the respondent regarding inconsistent statements.
b. The opposite is not true, however. See 8 C.F.R.
§ 1003.19(d). The determination of the Immigration Judge as to
custody status or bond may be based upon any information available
to the Immigration Judge (such as information from the deportation
hearing) or upon any evidence that is presented during the bond hearing
by the respondent or the DHS.
c. Hearsay is admissible, but its admission must
be probative and not fundamentally unfair. Rojas-Garcia v. Ashcroft,
339 F.3d 814, 823-24 (9th Cir. 2003); Guerrero-Perez v. INS, 242 F.3d
727, 729 n.2 (7th Cir. 2001); Bustos-Torres v. INS, 898 F.2d 1053
(5th Cir. 1990).
4. Since the rules of evidence are not applicable
and admissibility is favored, the pertinent question regarding most
evidence in immigration proceedings is not whether it is admissible,
but what weight the fact finder should accord it in adjudicating the
issues on which the evidence has been submitted.
5. Refer to Matter of S-M-J-, 21 I&N Dec. 722
(BIA 1997), regarding theresponsibilities of the parties and the Immigration
Judge with respect to evidence in the record. Generally the Immigration
Judge has the duty to make certain that the record is complete.
6. Refer to Matter of A-S-, 21 I&N Dec. 1106
(BIA 1998), regarding credibility findings by an Immigration Judge.
Detailed credibility findings are a must in asylum cases.
B. BURDEN OF PROOF AND PRESUMPTIONS
1. In Deportation Proceedings/ Removal Proceedings
a. Deportation Proceedings: DHS bears the burden
of establishing deportability. Deportability must be established by
evidence which is clear, unequivocal, and convincing. Woodby v. INS,
385 U.S. 276 (1966). The Woodby standard has been applied to various
elements of the deportability charge. Matter of Pichardo, 21 I&N
Dec. 330 (BIA 1996) (Documents offered to prove firearm conviction
do not specify weapon was firearm so INS failed to meet burden.)
i. While the government has the burden of proof
to establish deportability by clear, unequivocal, and convincing evidence,
a respondent in deportation proceedings may be required to go forward
with the evidence when the government has made a prima facie case
and the respondent has better control or knowledge of the evidence.
Matter of Vivas, 16 I&N Dec. 68 (BIA 1977) (respondent had to
go forward with evidence of proper ID of his alleged USC wife.)
ii. An exception to the “clear, unequivocal,
and convincing” standard exists in deportation proceedings in
which the alien is charged with deportability pursuant to INA §
237(a)(1)(D)(i) (former 241(a)(1)(D)(i)) as an alien whose status
as a conditional permanent resident has been terminated under INA
§ 216(b). Section 216(b)(2) of the Act provides that the DHS
bears the burden of demonstrating “by a preponderance of the
evidence” that a condition described in INA § 216(b)(1)
of the Act is met. See Matter of Lemhammad, 20 I&N Dec. 316 (BIA
iii. The government cannot establish a prima facie
case solely through inference drawn by the respondent’s Fifth
Amendment assertion of silence. Matter of Guevara, 20 I&N Dec.
238 (BIA 1991).
b. Removal Proceedings: In removal proceedings,
DHS has the burden of establishing by clear and convincing evidence
that, in the case of an alien who has been admitted to the United
States, the alien is deportable. No decision on deportability shall
be valid unless it is based upon reasonable, substantial, and probative
evidence. INA § 240(c)(3)(A).
c. Once alienage is established, the burden is on
the respondent to show the time, place, and manner of entry. INA §
291. If this burden of proof is not sustained, the respondent is presumed
to be in the United States in violation of the law. Id. This provision
becomes operative only after the government has established by prima
facie evidence that the respondent is an alien. In presenting this
proof, the respondent is entitled to the production of his visa or
other entry document, if any, and of any other documents and records
pertaining to his entry which are in the custody of DHS and not considered
confidential by the Attorney General. Id.
i. This burden and presumption is applicable to
any charge of deportability which brings into question the time, place,
and manner of entry. Matter of Benitez, 19 I&N Dec. 173 (BIA 1984).
ii. In a case involving time, place, and manner of
burden may only be to establish alienage.
In deportation proceedings there is no presumption
citizenship. INS v. Lopez-Mendoza, 468 U.S. 1032
(1984); United States ex rel. Bilokumsky v. Tod,
U.S. 149 (1923). A person born abroad is presumed
be an alien until he or she shows otherwise. See
Murphy v. INS, 54 F.3d 605 (9th Cir. 1995); Corona
Palomera v. INS, 661 F.2d 814 (9th Cir. 1981);
United States ex rel. Rongetti v. Neely, 207 F.2d
(7th Cir. 1953); Matter of Ponco, 15 I&N Dec.
(BIA 1974); Matter of Tijerina-Villarreal, 13 I&N
Dec. 327 (BIA 1969); Matter of A-M-, 7 I&N Dec.
332 (BIA 1956).
d. In applications for relief from deportation,
the burden of proof is on the respondent to show eligibility for the
relief sought. See e.g. Matter of S-Y-G-, 24 I&N Dec. 247 (BIA
2007); Matter of Jean, 27 I&N Dec. 373 (BIA 2002).
2. In Exclusion Proceedings/ Removal Proceedings
a. Exclusion: The burden of proof in exclusion proceedings
is on the applicant to show to the satisfaction of the Attorney General
that he is not subject to exclusion under any provision of the Act.
INA § 291.
Once an alien has presented a prima facie case of
Service has the burden of presenting some evidence
support a contrary finding. See Matter of Walsh and
I&N Dec. 60 (BIA 1988). The applicant for admission,
still retains the ultimate burden of proof. Id. See
Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994).
b. Whenever any person makes an application for
admission or attempts to enter the United States, the burden of proof
shall be upon such person to establish that he is not inadmissible
under any provision of the Act. INA § 291. Such person shall
not be admitted to the United States unless he established to the
satisfaction of the Attorney General that he is not inadmissible under
any provision of the Act. Id.
c. Removal Proceedings: Under IIRIRA, the burden
of proof is altered for persons who are charged with not being admitted
or paroled (EWI). The burden of proof is now statutory. If the person
is not an applicant for admission, DHS must first establish alienage.
8 C.F.R. § 1240.8(c). Unless respondent can show by clear and
convincing evidence that he is lawfully present in the United States
pursuant to a prior lawful admission, he must show he is clearly and
beyond a doubt entitled to be admitted to the United States and is
not inadmissible as charged. INA § 240(c)(2), 8 U.S.C. §
1229a(c)(2), 8 C.F.R. § 1240.8(b). If the person meets that burden,
DHS has the burden to show by “clear and convincing evidence”
that the person is deportable. INA §§ 240(c)(2)(B), (c)(3)(A),
8 U.S.C. §§ 1229a(c)(2)(B), (c)(3)(A).
d. An exception to the alien bearing the burden
of proof occurs when the applicant has a "colorable" claim
to status as a returning lawful permanent resident. In that case,
the burden of proof to establish excludability is on DHS. Matter of
Kane, 15 I&N Dec. 258 (BIA 1975). The DHS burden in such a case
is to show by "clear, unequivocal, and convincing evidence"
that the applicant should be deprived of lawful permanent resident
status. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988).
e. Another exception involves an alien "commuter"
who is not
returning to an actual unrelinquished permanent residence
United States. Such an alien maintains the burden
of proof to show
that he is not excludable. Matter of Moore, 13 I&N
Dec. 711 (BIA
f. If the lawful permanent resident contends that
proceedings are not proper under Rosenberg v. Fleuti,
374 U.S. 449 (1963) (Fleuti), he bears the burden to prove that he
comes within the Fleuti exception to the entry definition. See Molina
v. Sewell, 983 F.2d 676 (5th Cir. 1993).
i. In exclusion proceedings where the applicant
"colorable claim" to lawful permanent resident
alleges that exclusion proceedings are improper because
made an entry and should therefore be in deportation
proceedings, the burden is on the applicant to show
has effected an entry. See Matter of Z-, 20 I&N
(BIA 1993); Matter of Matelot, 18 I&N Dec. 334
1982); Matter of Phelisna, 18 I&N Dec. 272 (BIA
g. Under section 214(b) of the Act, every alien
is presumed to be an
immigrant. The burden of proof is on the alien to
nonimmigrant status under INA § l0l(a)(15).
h. In cases in which the applicant bears the burden
of proof, the burden of proof never shifts and is always on the applicant.
Matter of M-, 3 I&N Dec. 777 (BIA 1949); Matter of Rivero-Diaz,
12 I&N Dec. 475 (BIA 1967). Where the evidence is of equal probative
weight, the party having the burden of proof cannot prevail. Id. An
applicant for admission to the United States as a citizen of the United
States has the burden of proving citizenship. Matter of G-R-, 3 I&N
Dec. 141 (BIA 1948). Once the applicant establishes that he was once
a citizen and the INS asserts that he lost that status, then the INS
bears the burden of proving expatriation. Id. The standard of proof
to establish expatriation is less than the "clear, unequivocal,
and convincing" evidence test as applied in denaturalization
cases but more than a mere preponderance of evidence. The proof must
be strict and exact. Id.
3. In Rescission Proceedings
a. In rescission proceedings the burden of proof
is on DHS.
b. This is the same burden that DHS bears in deportation
c. Rescission must be established by evidence that
unequivocal, and convincing." Matter of Vilanova-Gonzalez,
I&N Dec. 399 (BIA 1969); Waziri v. INS, 392 F.2d
55 (9th Cir.
d. In rescission proceedings, the government must
only prove ineligibility on grounds originally asserted for adjustment.
It need not address any other grounds on which applicant could have
sought adjustment. Shoo Hwan Kim v. Meese, 810 F.2d 1494 (9th Cir.
e. The rules of evidence are not binding in a rescission
hearing. Matter of Giannoutsos, 17 I&N Dec. 172 (BIA 1979); Matter
of Devera, 16 I&N Dec. 266 (BIA 1977).
f. In any proceeding conducted under this part,
the immigration judge shall have authority to interrogate, examine,
and cross-examine the respondent and other witnesses, to present and
receive evidence, to determine whether adjustment of status shall
be rescinded, to make decisions thereon, including an appropriate
order, and to take any other action consistent with applicable provisions
of law and regulations as may be appropriate to the disposition of
the case. 8 C.F.R. § 1246.4.
4. In Removal Proceedings
a. Deportable: INS has burden of proving that alien
is deportable by
evidence which is clear and convincing. INA §
240(c)(3); 8 C.F.R.
b. Inadmissible - arriving alien: Alien has burden
to prove clearly and beyond doubt that they are entitled to be admitted
to the United States and not admissible as charged. 8 C.F.R. §
c. Aliens present in United States without being
admitted or paroled Present Without Inspection: DHS has initial burden
to establish the alienage of the respondent; once alienage is established,
the respondent must establish by clear and convincing evidence that
he was lawfully admitted to the United States. If the respondent cannot,
the respondent must prove clearly and beyond doubt that he or she
is entitled to be admitted and is not inadmissible. 8 C.F.R. §
4. In absentia Removal Proceeding
An alien who fails to appear shall be ordered removed
in absentia if DHS establishes by clear, unequivocal, and convincing
evidence that the written notice was so provided and that the alien
is removable. INA § 240(b)(5)(A). An alien who, after being provided
required written notice, does not attend a proceeding shall be ordered
removed in absentia if the Service established by clear, unequivocal,
and convincing evidence that the written notice was so provided and
that the alien is removable. Id. The written notice by the Attorney
General shall be considered sufficient for purposes of this subparagraph
if provided at the most recent address provided under INA § 239(a)(1)(F).
5. Relief from Removal
a. The respondent has the burden of establishing
eligibility for any requested relief, benefit or privilege and that
it should be granted in
the exercise of discretion. If the evidence indicates
that one or more of the grounds for mandatory denial of the application
for relief may apply, the alien shall have the burden of proving by
a preponderance of the evidence that such grounds do not apply.
b. Section 101(d) of the REAL ID Act of 2005, PL
109-13 (May 11, 2005) amended INA § 240(c) for applications for
relief filed on or after May 11, 2005 to clarify that the applicant
for relief or protection from removal has the burden to establish:
(i) s/he satisfies the applicable eligibility requirements; and (ii)
s/he merits a favorable exercise of discretion (where the exercise
of discretion is relevant). The burden of proof to establish eligibility
and to establish the privilege of the relief is on the applicant even
for applications filed before May 11, 2005. 8 C.F.R. §§
6. Credibility in Removal Proceedings
a. Pre REAL ID:
See Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998),
regarding credibility findings by an Immigration Judge. Detailed credibility
findings are a must in asylum cases. Prior to the REAL ID Act of 2005,
where an IJ did not make a credibility determination the court presumed
credibility. Kayembe v Ashcroft, 334 F.3d 234, 237-39 (3d Cir. 2003).
Also prior to the REAL ID Act, “absent an explicit finding that
a specific statement by the petitioner is not credible we are required
to accept her testimony as true.” Lukwago v. Ashcroft, 329 F.3d
157 (3d Cir. 2003).
b. Post REAL ID:
Post-May 11, 2005, cases have new, specific standards
for credibility. Credibility is now determined by the “totality
of the circumstances and all relevant factors.” There is no
presumption of credibility but the applicant has a rebuttable presumption
on appeal if no adverse credibility determination is explicitly made.
INA §§ 208(b)(1)(B), 240(c)(4)(C), 241(b)(3)(C).
II. SPECIFIC TOPICS IN EVIDENCE
A. DOCUMENTARY EVIDENCE
The decision to admit documentary evidence is a function
committed to the discretion of the Immigration Judge. In order to
assure clarity of the record, all documents should be marked and identified.
Before a document may be admitted into evidence it must meet certain
criteria. Opposing counsel should be given the opportunity to question
the witness as to the identification and authenticity of a document.
There may be also a question regarding relevance of a document. The
Immigration Judge must then determine whether to admit the document.
Even if a document is not admitted it must be preserved as part of
the record. There are numerous requirements regarding the admission
of official documents. See e.g., Matter of O-D-, 21 I&N Dec.1079
a. Domestic Documents
i. Under 8 C.F.R. § 1287.6(a) an official record,
when admissible for any purpose, shall be evidenced by an official
publication thereof, or by a copy attested by the official having
legal custody of the record or by an authorized deputy.
ii. However, under 8 C.F.R. § 1003.41, the
following documents are admissible to prove a criminal conviction:
(a) A record of judgment and conviction. 8 C.F.R.
(b) A record of plea, verdict, and sentence. 8 C.F.R.§
(c) A docket entry from court records that indicates
the existence of a conviction. 8 C.F.R. § 1003.41(a)(3);
(d) Minutes of a court proceeding or a transcript
of a hearing that indicates the existence of a conviction. 8 C.F.R.
(e) An abstract of a record of conviction prepared
by the court in which the conviction was entered or by a state official
associated with the state's repository of criminal records which indicates
the charge or section of law violated, the disposition of the case,
the existence and date of conviction, and the sentence. 8 C.F.R. §
(f) Any document or record prepared by, or under
the direction of, the court in which the conviction was entered that
indicates the existence of a conviction. 8 C.F.R. § 1003.41(a)(6).
iii. Pursuant to 8 C.F.R. § 1003.41(b) any
document or record listed in ii above may be submitted if it complies
with the provisions of 8 C.F.R. § 1287.6(a); i.e., attested by
the custodian of the document or his authorized deputy, or it is attested
by an immigration officer to be a true and correct copy of the original.
iv. In accordance with 8 C.F.R. § 1003.41(c)
any record of conviction or abstract submitted by electronic means
to the Service from a state court shall be admissible as evidence
to prove a criminal conviction if:
(a) It is certified by a state official associated
with the state's repository of criminal justice records as an official
record from its repository, or by a court official from the court
in which the conviction was entered as an official record from its
repository. (8 C.F.R. § 1003.41(c)(1) provides that the certification
may be by means of a computer-generated signature and statement of
(b) It is certified in writing by a Service official
as having been received electronically from the state's record repository
or the court's record repository.
v. Lastly, 8 C.F.R. § 1003.41(d) provides that
any other evidence that reasonably indicates the existence of a criminal
conviction may be admissible as evidence thereof.
b. Foreign documents.
i. Documents from Canada may be introduced with
proper certification from the official having legal custody of the
record. An official record or entry therein, issued by a Canadian
governmental entity within the geographical boundaries of Canada,
when admissible for any purpose, shall be evidenced by a certified
copy of the original record attested by the official having legal
custody of the record or by an authorized deputy. 8 C.F.R. §
1287.6(d). The same is true for countries that are a signatory to
the Convention Abolishing the Requirement of Legislation for Foreign
Public Document (Convention). These documents must be properly certified
under the Convention.
ii. Documents from countries who are signatory to
the Convention Abolishing the Requirement for Legislation for Foreign
(a) Under 8 C.F.R. § 1287.6(c), a public document
or entry therein, when admissible for any purpose, may be evidenced
by an official publication or by a copy properly certified under the
(b) No certification is needed from an officer in
the Foreign Service of public documents. 8 C.F.R. § 1287.6(c)(2).
But to be properly certified they must be accompanied by a certificate
in the form dictated by the Convention.
(c) Under 8 C.F.R. § 1287.6(c)(3), in accordance
with the Convention, the following documents are deemed to be public
(i) Documents emanating from an authority or an official
connected with the courts or tribunals of the state, including those
emanating from a public prosecutor, a clerk of a court, or a process
(ii) administrative documents;
(iii) notarial acts;
(iv) official certificates which are placed on documents
signed by persons in their private capacity, such as official certificates
recording the registration of a document or the fact that it was in
existence on a certain date, and official and notarial authentication
(d) Under 8 C.F.R. § 1287.6(c)(4) in accordance
with the Convention, the following documents are deemed not to be
public documents and are subject to the more stringent requirements
of 8 C.F.R. § 1287.6(b):
(i) documents executed by diplomatic or consular
(ii) administrative documents dealing directly with
commercial or customs operations.
iii. Documents from countries not signatories to
(a) There are more stringent requirements for
documents from a country not a signatory to
the Convention. Regulations provide that an
official record or entry therein, when admissible
for any purpose, shall be evidenced by an official publication thereof,
or by a copy attested by an officer so authorized. 8 C.F.R. §
1287.6(b)(1). This attested copy, with the additional foreign certificates,
if any, must be certified by an officer in the Foreign Service of
the United States, stationed in the country where the record is kept.
8 C.F.R. § 1287.6(b)(2). The Foreign Service officer must certify
the genuineness of the signature and the official position of either:
i. the attesting officer, or
ii. any foreign officer whose certification of genuineness
of signature and official position relates directly to the attestation
or is in a chain of certificates of genuineness of signature and official
position relating to the attestation.
The regulations at 8 C.F.R. § 1287.6(b)(1) provide
that the copy attested by an authorized foreign officer may, but need
not, be certified in turn by any authorized foreign officer both as
to the genuineness of the signature of the attesting officer and as
to his/her official position. The signature and official position
of this certifying officer may then likewise be certified by any other
foreign officer so authorized, thereby creating a chain of certificates.
In that situation, the officer of the Foreign Service of the United
States may certify any signature in the chain.
2. Translation of Documents In accordance with 8
C.F.R. § 1003.33 any document in a foreign language offered by
a party in a proceeding shall be accompanied by an English language
translation and a certification signed by the translator that must
be printed legibly or typed. Such certification must include a statement
that the translator is competent to translate the document and that
the translation is true and accurate to the best of the translator's
a. Under 8 C.F.R. § 1003.32(a), except for
an in absentia hearing, a copy of all documents (including proposed
exhibits or applications) filed with or presented to the Immigration
Judge shall be simultaneously served by the presenting party on the
opposing party or parties.
b. Service of copies shall be in person or by first
class mail to the most
recent address contained in the Record of Proceeding.
8 C.F.R. §
c. A certification showing service on the opposing
party on a date certain shall accompany any filing with the Immigration
Judge unless service is made on the record during the hearing. Any
documents or applications not containing such certification will not
be considered by the Immigration Judge unless service is made on the
record during a hearing. 8 C.F.R. § 1003.32(a).
4. Size and Format of Documents
a. Unless otherwise permitted by the Immigration
Judge, all written material presented to Immigration Judges must be
on 8 ½" x 11" size paper. 8 C.F.R. § 1003.32(b).
b. An Immigration Judge may require that exhibits
or other written material presented be indexed and paginated and that
a table of contents be provided. 8 C.F.R. § 1003.32(b).
5. Presumption of Regularity of Government Documents
The BIA has held that government documents are entitled
to a presumption of regularity. Matter of P-N-, 8 I&N Dec. 456
(BIA 1959). It is the respondent/applicant's burden to overcome this
6. Similarity of Names
When documentary evidence bears a name identical
to that of the respondent, an Immigration Judge may reasonably infer
that such evidence relates to the respondent in the absence of evidence
that it does not relate to him. See Matter of Ramirez-Sanchez, 17
I&N Dec. 503 (BIA 1980); Matter of Leyva, 16 I&N Dec. 118
(BIA 1977); Matter of Li, 15 I&N Dec. 514 (BIA 1975); Matter of
Cheung, 13 I&N Dec. 794 (BIA 1971); United States v. Rebon-Delgado,
467 F.2d 11 (9th Cir. 1972);
7. Cases Regarding Specific Documents
a. Form I-213, Record of Deportable/Inadmissible
i. Absent proof that a Form I-213 contains information
that is incorrect or was obtained by coercion or duress, that document
is inherently trustworthy and admissible as evidence to prove alienage
and deportability or inadmissibility. Matter of Barcenas, 19 I&N
Dec. 609 (BIA 1988); Matter of Mejia, 16 I&N Dec. 6 (BIA 1976).
But see Baliza v. INS, 709 F.2d 1231 (9th Cir. 1983)
and other cases which hold that Form I-213s and affidavits, when the
accuracy of the document is disputed by the alien, are not admissible
when the right to cross-examination is thwarted, unless the declarant
is unavailable and reasonable efforts were made to produce the declarant.
ii. In fact, the document would be admissible even
under the Federal Rules of Evidence as an exception to the hearsay
rule as a public record or report. Matter of Mejia, 16 I&N Dec.
6 (BIA 1976).
iii. Form I-213, Record of Deportable/Inadmissible
Alien cannot be used where a minor made admissions without representation
and was unaccompanied. Davila-Bardales v. INS, 27 F.3d 1 (1st Cir.
1994); See Matter of Amaya, 21 I&N Dec. 583 (BIA 1996) (Judge
may not accept a minor’s admission to a charge, but may accept
a minor’s admission to factual allegations).
b. Form I-130, Visa Petition - A Form I-130 and
accompanying documents (birth certificate, marriage certificate, etc.)
are admissible, even without identification of the Form I-130 by its
maker, if there is an identity of name with the name of the respondent.
Matter of Gonzalez, 16 I&N Dec. 44 (BIA 1976).
c. Form I-589, Request for Asylum in the United
States - information provided in an application for asylum or withholding
of deportation or removal filed on or after January 4, 1995, may be
used as a basis for initiation of removal proceedings, or to satisfy
any burden of proof in a exclusion, deportation, or removal proceedings.
8 C.F.R. § 1208.3(c).
8. Criminal convictions: Under INA §240(c)(3)(B),
any of the following documents constitute proof of a criminal conviction:
(a) an official record of judgment and conviction; (b) an official
record of plea, verdict, and sentence; (c) a docket entry from court
records that indicates the existence of the conviction; (d) official
minutes of a court proceeding or a transcript of a court hearing in
which the court takes notice of the existence of the conviction; (e)
an abstract of a record of conviction; (f) any document or record
prepared by or under the direction of the court indicating the existence
of the conviction; or (g) any document or record maintained by a penal
institution attesting to the conviction. Electronic records are also
admissible if certified by state official and certified by DHS official
as having been received electronically. INA §240(c)(3)(C). This
list is not exclusive and the government may offer “any other
evidence” to establish deportability. 8 C.F.R. §1003.41(d).
i. Aggravated Felony:
Divisible Statutes: When the conviction is under
a statute that is divisible, it is necessary to look to the record
of conviction (not the facts) “and to other documents admissible
as evidence in proving a criminal conviction” to determine whether
the specific offense is an aggravated felony. Matter of Sweetser,
22 I&N Dec. 709, 714 (BIA 1999).
The Supreme Court in Shepard v. U.S., 544 U.S. 13,
125 S.Ct. 1254, 1257 (2005) found that, in analyzing a generic conviction,
the documents that may be considered are the charging document, written
plea agreement, transcript of plea colloquy, and any explicit factual
findings by the trial judge to which the defendant assented.”
9. Timeliness: 8 C.F.R. § 1003.31(c) states
that the IJ may set and extend time limits for the filing of applications
and related documents ... If an application or document is not filed
within the time set by the IJ, the opportunity to file that application
or document shall be deemed waived. This means that evidence may not
be submitted after the close of a hearing. Where the IJ has closed
the hearing, a party may not submit evidence except on a motion to
Each immigration court has local rules that define
when evidence must be submitted to the court in advance of a hearing.
Generally, the rules require that documents be submitted at least
10 days in advance of the hearing. However, the IJ may set his own
time for the submission of documentary evidence even if it is outside
of the local rules. 8 C.F.R. §1003.31(c).
10. Challenged Evidence: (1) An alien who raises
the claim questioning the legality of evidence must come forward with
proof establishing a prima facie case before the government will be
called upon to assume the burden of justifying the manner in which
it obtained evidence. Matter of Burgos, 15 I&N Dec. 278 (BIA 1975);
Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988). Where an alien
wishes to challenge the admissibility of a document, the mere offering
of an affidavit is not sufficient to sustain his burden. Id. If the
affidavit is such that the facts alleged, if true, could support a
basis for excluding the evidence, then the claims must also be supported
by testimony. Id.
B. ADMISSIONS MADE BY COUNSEL
1. There is a strong presumption that an attorney's
decision to concede an alien's deportability ... [is] a reasonable
tactical decision, and, absent a showing of egregious circumstances,
such a concession is binding upon the alien as an admission. It is
immaterial whether an alien actually authorized his attorney to concede
deportability . . .for so long as the motion was prepared and filed
by an attorney of record on behalf of his alien client, it is prima
facie regarded as authorized by the alien and is admissible as evidence.
An allegation that an attorney was authorized to represent an alien
only to the extent necessary to secure a reduction in the amount of
bond does not render inadmissible the attorney's concession of deportability
in a pleading filed in regard to another matter, for there is no ‘limited’
appearance of counsel in immigration proceedings.
Matter of Velasquez, 19 I&N Dec. 377 (BIA 1986).
2. DHS should be held to the same standards as the
respondent and is also bound by the admissions of counsel. Thus, if
counsel for the DHS states at a master calendar hearing that they
is not opposed to a grant of voluntary departure, the DHS cannot oppose
that relief and argue that the respondent has failed to appear and
establish his eligibility if the respondent is absent from a later
hearing on another application for relief and his counsel withdraws
the application and asks only for voluntary departure. DHS would have
to present evidence of the respondent's ineligibility for voluntary
departure to support its change in position concerning the relief.
C. TESTIMONIAL EVIDENCE
1. Calling the Alien to Testify
a. The government may call the respondent as a witness
to establish deportability. Requiring the respondent to testify does
not violate due process, absent a valid claim of self-incrimination.
Matter of Laqui, 13 I&N Dec. 232 (BIA 1969), aff'd, Laqui v. INS,
422 F.2d 807 (7th Cir. 1970).
b. A valid claim to privilege against compulsory
self-incrimination under the Fifth Amendment may be raised only as
to questions that present a real and substantial danger of self-incrimination.
Marchetti v. United States, 390 U.S. 39 (1968). Therefore, an Immigration
Judge does not err in compelling nonincriminating testimony. Wall
v. INS, 722 F.2d 1442 (9th Cir. 1984); Chavez-Raya v. INS, 519 F.2d
397 (7th Cir. 1975); Matter of Santos, 19 I&N Dec. 105 (BIA 1984)
(stating that no crime is implicated when a nonimmigrant overstays
his allotted time of admission).
c. Neither the Immigration Judge nor DHS counsel
is in a position to offer immunity from criminal prosecution. This
is an action which can only be authorized by the Attorney General
or certain officials designated by him. Matter of King and Yang, 16
I&N Dec. 502 (BIA 1978); Matter of Exantus and Pierre, 16 I&N
Dec. 382 (BIA 1977); Matter of Carrillo, 17 I&N Dec. 30 (BIA 1979).
2. Refusal by the Alien to Testify
Under certain circumstances, an adverse inference
may be drawn from a respondent’s silence in deportation proceedings.
United States v. Sing Tuck, 194 U.S. 161 (1927) (exclusion proceedings;
simple assertion of citizenship plus silence thereafter is not enough
to avert exclusion and deportation); United States v. Alderete-Deras,
743 F.2d 645 (9th Cir. 1984); Matter of Carrillo, 17 I&N Dec.
30 (BIA 1979) (after burden of proof was shifted to respondent, silence
was not enough to avert deportability). When confronted with evidence
of, for example, the respondent’s alienage, the circumstances
of his entry, or his deportability, a respondent who remains silent
may leave himself open to adverse inferences, which may properly lead
in turn to a finding of deportability against him.
a. On the issue of deportability.
i. Refusal to testify without legal justification
in deportation proceedings concerning the questions of alienage, time,
place, and manner of entry constitutes reliable, substantial, and
probative evidence supporting a finding of deportability. Matter of
R-S-, 7 I&N Dec. 271 (BIA, A.G. 1956); Matter of Pang, 11 I&N
Dec. 489 (BIA 1966).
ii. It is also proper to draw an unfavorable inference
from refusal to answer pertinent questions where such refusal is based
upon a permissible claim of privilege as well as where privilege is
not a factor. Matter of O-, 6 I&N Dec. 246 (BIA 1954). The prohibition
against the drawing of an unfavorable inference from a claim of privilege
arises in criminal proceedings, not civil proceedings. Id. The logical
conclusion to be drawn from the silence of one who claims his answers
may subject him to possible prosecution or punishment is that the
testimony withheld would be adverse to the interests of the person
claiming the privilege. Id. Even if the refusal to testify is based
on the Fifth Amendment privilege against self-incrimination, the refusal
forms the basis of an inference and such inference is evidence. United
States v. Alderete-Deras, 743 F.2d 645 (9th Cir. 1984) (citing Bilokumsky
v. Tod, 263 U.S. 149 (1923)); Matter of M-, 8 I&N Dec. 535 (BIA
1960); Matter of V-, 7 I&N Dec. 308 (BIA 1956); Matter of P-,
7 I&N Dec. 133 (BIA 1956).
iii. Although it is proper to draw an unfavorable
inference from a respondent's refusal to answer pertinent questions,
the inference may only be drawn after a prima facie case of deportability
has been established. Matter of O-, 6 I&N Dec. 246 (BIA 1954);
Matter of J-, 8 I&N Dec. 568 (BIA 1960). In deportation proceedings,
the respondent's silence alone, in the absence of any other evidence
of record, is insufficient to constitute prima facie evidence of the
respondent's alienage and is therefore also insufficient to establish
the respondent's deportability. Matter of Guevara, 20 I&N Dec.
238 (BIA 1990, 1991). Also, the record should show that the respondent
was requested to give testimony, that there was a refusal to testify,
and the ground of refusal. Matter of J-, supra.
b. On the issue of relief.
i. In the case of an alien who refused to answer
of a congressional committee on the grounds that
answers might incriminate him, the BIA held that
well be inferred that what would be revealed by the
to such questions would not add to the alien's desirability
a resident. Therefore, he was found not to be a desirable
resident of the United States and his application
suspension of deportation was denied as a matter
discretion. Matter of M-, 5 I&N Dec. 251 (BIA
ii. An applicant for the exercise of discretion
has the duty of making a full disclosure of all pertinent information.
If, under a claim of privilege against self-incrimination pursuant
to the Fifth Amendment, an applicant refuses to testify concerning
prior false claims to United States citizenship, denial of his application
is justified on the ground that he has failed to meet the burden of
proving his fitness for relief. Matter of Y-, 7 I&N Dec. 697 (BIA
iii. A respondent's refusal to answer questions
pertaining to his application for voluntary departure prevented a
full examination of his statutory (or discretionary, depending on
the questions) eligibility for the relief sought, and such relief
is properly denied. Matter of Li, 15 I&N Dec. 514 (BIA 1975).
Since the grant of voluntary departure is a matter of discretion and
administrative grace, a respondent's refusal to answer questions directed
to him bearing on his application for voluntary departure is a factor
which an Immigration Judge may consider in the exercise of discretion.
Matter of Mariani, 11 I&N Dec. 210 (BIA 1965). The same applies
to an application for registry under section 249 of the Act. See Matter
of DeLucia, 11 I&N Dec. 565 (BIA 1966).
iv. An alien seeking a favorable exercise of discretion
limit the inquiry to the favorable aspects of the
reserve the right to be silent on the unfavorable
Matter of DeLucia, 11 I&N Dec. 565 (BIA 1966);
Y-, 7 I&N Dec. 697 (BIA 1958).
v. A respondent has every right to assert his Fifth
privilege against self-incrimination. However, as
applicant for adjustment of status, he also is required
provide information relevant to the exercise of discretion.
In refusing to disclose such information, the respondent
prevents an Immigration Judge from reaching a conclusion
as to the respondent's entitlement to adjustment
Therefore, the respondent has failed to sustain the
establishing that he is entitled to the privilege
of status and his application is properly denied.
Marques, 16 I&N Dec. 314 (BIA 1977).
D. THE EXCLUSIONARY RULE FOR EVIDENCE OBTAINED IN
OF THE FOURTH AMENDMENT PROHIBITION AGAINST UNLAWFUL
SEARCH AND SEIZURE
Deportation and Removal proceedings are civil, not
criminal; therefore, the Fourth Amendment exclusionary rule is not
applicable to those proceedings. Respondents/applicants cannot generally
suppress evidence asserted to be procured in violation of the Fourth
Amendment. See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)[Fourth Amendment-based
exclusionary rule inapplicable to deportation proceedings.]; Matter
of Sandoval, 17 I&N Dec. 70 (BIA 1979). But if there was a policy
or widespread abuse, or if there are egregious Fourth Amendment violations
which transgress notions of fundamental fairness, the exclusionary
rule might apply. Lopez Mendonza, supra at 1051-51 and n.5; Matter
of Cervantes, 21 I&N Dec. 351, 353 (BIA 1996).
E. EVIDENCE OBTAINED IN VIOLATION OF THE DUE PROCESS
OF THE FIFTH AMENDMENT
1. The BIA has held that evidence obtained by coercion
or other activity
which violates the due process clause of the Fifth
Amendment may be
excluded. Matter of Toro, 17 I&N Dec. 340 (BIA
1980). A coerced confession has been held to be suppressible. Navia-Duran
v. INS, 568 F.2d 803 (1st Cir. 1977); Bong Youn Choy v. Barber, 279
F.2d 642 (9th Cir. 1960). Also, evidence may be suppressed that is
derived from illegal electronic surveillance. 18 U.S.C. §3504(a);
Matter of Hemblen, 14 I&N Dec. 739 (BIA 1974).
2. However, a mere demand for a suppression hearing
is not enough to cause
one to be held. In a claim that evidence was obtained
in violation of due
process, the burden is on the respondent to establish
a prima facie case of
illegality before the INS will be called upon to
assume the burden of
justifying the manner in which it obtained its evidence.
Matter of Burgos,
15 I&N Dec. 278 (BIA 1975); Matter of Wong, 13
I&N Dec. 820 (BIA
1971); Matter of Tang, 13 I&N Dec. 691 (BIA 1971).
There is no right to a separate suppression hearing. Matter of Barcenas,
19 I&N Dec. 609 (BIA 1988).
3. To establish a prima facie case, statements alleging
illegality must be
specific and detailed, not general, conclusory, or
based on conjecture. They must be based on personal knowledge, not
merely the allegations of
counsel. Matter of Wong, 13 I&N Dec. 820 (BIA
1971). There must be live testimony or a statement. Matter of Benitez,
19 I&N Dec. 173 (BIA 1984).
4. In addition to establishing a prima facie case,
a motion to suppress evidence must enumerate the articles to be suppressed.
Matter of Wong, 13 I&N Dec. 820 (BIA 1971).
5. Where a party wishes to challenge the admissibility
of a document
allegedly obtained in violation of the due process
clause of the Fifth
Amendment, the offering of an affidavit which describes
document or the information therein was obtained
is not sufficient to
sustain the burden of establishing a prima facie
case. If an affidavit is
offered which, if accepted as true, would not form
a basis for excluding the evidence, the contested document may be
admitted into the record. If the affidavit is such that the facts
alleged, if true, could support a basis for
excluding the evidence in question, then the claims
must also be supported
by testimony. Matter of Barcenas, 19 I&N Dec.
609 (BIA 1988).
6. Even where certain evidence may have been acquired
in violation of due
process, the identity of the alien is not suppressible.
INS v. Lopez-
Mendoza, 468 U.S. 1032 (1984); Bilokumsky v. Tod,
263 U.S. 149 (1923); Matter of Ramirez-Sanchez, 17 I&N Dec. 503
(BIA 1980); Matter of Sandoval, 17 I&N Dec. 70 (BIA 1979). Therefore,
a respondent is not
justified in refusing to identify himself at a deportation
In an unpublished decision, the BIA noted that neither
the respondent nor
his counsel objected at the outset of each of his
hearings when the
Immigration Judge identified the respondent by name
and indicated that he
was present each time. While counsel motioned the
Immigration Judge to
allow the respondent to refuse to identify himself,
the Board held that such
a motion does not effectively amount to a denial
by the respondent of this
true identity. The Board concluded that either the
respondent's silence or
lack of objection to the Immigration Judge's identifying
the respondent by
name are sufficient inferences that the respondent
was correctly identified
as the alien in the deportation proceedings.
F. THE DOCTRINE OF EQUITABLE ESTOPPEL
1. Equitable estoppel is a judicially devised doctrine
which precludes a party
to a lawsuit, because of some improper conduct on
that party's part, from
asserting a claim or defense, regardless of its substantive
validity. Matter of Hernandez-Puente, 20 I&N Dec. 335 (BIA 1991)
(citing Phelps v. Federal Emergency Management Agency, 785 F.2d 13
(1st Cir. 1986)).
2. The Supreme Court has recognized the possibility
that the doctrine of equitable estoppel might be applied against the
government in a case where it is established that its agents engaged
in "affirmative misconduct." INS v.Hibi, 414 U.S. 5 (1973);
Montana v. Kennedy, 366 U.S. 308 (1961).
However, the Supreme Court has not yet decided whether
misconduct" is sufficient to estop the government
from enforcing the
immigration laws. INS v. Miranda, 459 U.S. 14 (1982).
3. Some federal courts have found "affirmative
misconduct" and applied
estoppel against the Government. Fano v. O'Neill,
806 F.2d 1262 (5th Cir.
1987); Corniel-Rodriguez v. INS, 532 F.2d 301 (2d
4. Estoppel is an equitable form of action and only
equitable rights are
recognized. By contrast, the BIA can only exercise
such discretion and
authority conferred upon the Attorney General by
law. The Board's
jurisdiction is defined by the regulations and it
has no jurisdiction unless it
is affirmatively granted by the regulations. Therefore,
the BIA and
Immigration Judges are without authority to apply
the doctrine of equitable
estoppel against the INS so as to preclude it from
undertaking a lawful
course of action that it is empowered to pursue by
statute and regulation.
Matter of Hernandez-Puente, 20 I&N Dec. 335 (BIA
G. THE DOCTRINE OF COLLATERAL ESTOPPEL OR RES JUDICATA
1. In general
a. The doctrine of collateral estoppel precludes
parties to a judgment
on the merits in a prior suit from relitigating in
a subsequent suit
issues that were actually litigated and necessary
to the outcome of
the prior suit. Matter of Fedorenko, 19 I&N Dec.
57 (BIA 1984).
b. The doctrine of collateral estoppel generally
applies to the
government as well as to private litigants. Id.
c. The doctrine of collateral estoppel may be applied
reconsideration of an issue of law, as well as fact,
so long as the
issue arises in both the prior and subsequent suits
identical facts and there has been no change in the
d. The doctrine of collateral estoppel applies in
proceedings when there has been a prior judgment
parties that is sufficiently firm to be accorded
conclusive effect, the
parties had a full and fair opportunity to litigate
the issues resolved
by and necessary to the outcome of the prior judgment,
and the use
of collateral estoppel is not unfair. Id.
e. The language in section 242(b) of the Act, which
deportation proceedings shall be "the sole and
for determining the deportability of an alien,"
does not preclude the
use of collateral estoppel in a deportation proceeding.
language was intended to exempt deportation proceedings
provisions of any other law, most particularly the
Procedure Act of June 11, 1946, 60 Stat. 237, repealed
by Pub. L.
No. 89-554, 80 Stat. 378 (1966). Id.
f. Under the doctrine of collateral estoppel, a
conclusively establishes the "ultimate facts"
of a subsequent
deportation proceedings; i.e., those facts upon which
deportability and eligibility for relief from deportation
are to be
determined. Collateral estoppel also precludes reconsideration
issues of law resolved by the prior judgment, so
long as the issues in the prior suit and the deportation proceedings
arise from virtually identical facts and there has been no change
in the controlling law. Id.
2. Decisions in Criminal Proceedings
a. The adverse judgment of a court in a criminal
proceeding is binding in deportation proceedings in which the respondent
was the defendant in the criminal case and in which the issue is one
that was also an issue in the criminal case. Matter of Z-, 5 I&N
Dec. 708 (BIA 1954).
b. Where a respondent has been convicted in a criminal
a conspiracy to violate section 275 of the Act (entry
inspection or by willfully false or misleading representation
willful concealment of a material fact) but the indictment
contain an allegation that the respondent procured
a visa by fraud,
his conviction will not, under the doctrine of collateral
establish his deportability as an alien who procured
a visa by fraud.
Matter of Marinho, 10 I&N Dec. 214 (BIA 1962,
c. An alien attempting to enter the United States
by presenting a false
Alien Registration Card, and who was paroled for
thereafter convicted in a criminal proceeding of
a violation of
section 275 of the Act (8 U.S.C. § 1325 - illegal
entry), is not
properly placed in exclusion proceedings. Although
was paroled into the United States, he was prosecuted
and convicted of illegal entry. Therefore, an exclusion proceeding
will be terminated because, under the doctrine of collateral estoppel,
INS is prevented from denying that the applicant
made an entry.
Matter of Barragan-Garibay, 15 I&N Dec. 77 (BIA
d. The definition of the term "entry"
in former section l0l(a)(13) of the Act applies to both the criminal
provisions of section 275 of the Act and the deportation provisions
of (former) section 241(a)(2) of the Act. The definition of "entry"
in section l0l(a) (13) of the Act was interpreted in Rosenberg v.
Fleuti, 374 U.S. 449 (1963). Since the respondent was convicted of
illegal entry in a criminal proceeding, that decision is dispositive
of any possible Fleuti issue, and the respondent is collaterally estopped
from relitigating the issue of illegal entry in a subsequent deportation
proceeding. Matter of Rina, 15 I&N Dec. 346 (BIA 1975).
e. Where a respondent has been acquitted on a criminal
charge, one of the essential elements of which was alienage, the doctrine
collateral estoppel does not preclude litigation
of the question of his alienage in subsequent deportation proceedings
because of the
difference in the burden of proof applicable to criminal
proceedings and to deportation proceedings. Matter of Perez-Valle,
17 I&N Dec. 581 (BIA 1980).
f. An applicant in exclusion proceedings is estopped
that he was brought to the United States against
his will where, in
criminal proceedings for attempted smuggling of heroin
United States, the court considered the same contention
that the applicant came to the United States voluntarily.
applicant in possession of a visa for entry into
the United States,
destined to the United States, voluntarily arriving
in the United
States, and submitting his luggage for inspection
officials, must be considered an applicant for admission.
Grandi, 13 I&N Dec. 798 (BIA 1971).
g. Ordinarily a court decision may be res judicata
or operate as a
collateral estoppel in a subsequent administrative
proceeding. When a respondent presented a fraudulent offer of employment
with his application for an immigrant visa, however, and was later
convicted in a criminal proceeding of a conspiracy to violate 18 U.S.C.
§ 1001 (making false statements or using false writings), because
of the issue of materiality the doctrine of collateral estoppel does
not estop the respondent from denying that he was excludable at entry
under (former) section 212(a)(19) of the Act [procured visa by fraud
or willfully misrepresenting a material fact] or (former) section
212(a)(20) of the Act [immigrant not in possession of a valid immigrant
visa]. A misrepresentation is material if the alien is excludable
on the true facts or if it tends to shut off a line of inquiry which
is relevant to the alien's eligibility, and which might have resulted
in a proper determination that he be excluded. See Matter of S- and
B-C-, 9 I&N Dec. 436 (BIA 1960; A.G. 1961). In a criminal case
(in those jurisdictions where materiality is required), the test of
materiality is merely whether the false statement could affect or
influence the exercise of a governmental function. An offer of employment
is not legally required as an absolute condition for the issuance
of an immigrant visa. The purpose of such a document is merely to
assist the Consul in the determination of whether to issue the visa.
Therefore, the respondent's misrepresentation was not material and
he is not deportable for being excludable at entry. Matter of Martinez-Lopez,
10 I&N Dec. 409 (BIA 1962; A.G. 1964).
3. Decisions in Denaturalization Cases
a. Under the doctrine of collateral estoppel, a
prior denaturalization judgment conclusively establishes the "ultimate
facts" of subsequent deportation proceedings, i.e. those facts
upon which an alien's deportability and eligibility for relief from
deportation are to be determined. The doctrine precludes reconsideration
of issues of law resolved by the prior judgment, so long as the issues
in the prior suit and the deportation proceedings arise from virtually
identical facts and there has been no change in the controlling law.
Matter of Fedorenko, 19 I&N Dec. 57 (BIA 1984).
b. Where one of the principal issues in a denaturalization
suit was whether the respondent had been a member of the Communist
Party from 1930 to 1936, and this issue was litigated and was essential
to the court's determination resulting in a judgment revoking citizenship,
by the doctrine of collateral estoppel the finding by the court in
the denaturalization suit was conclusive in the subsequent deportation
proceeding involving a charge based upon a like period of membership
in the Communist Party. Matter of C-, 8 I&N Dec. 577 (BIA 1960).
c. Under the doctrine of collateral estoppel, a
finding by a
denaturalization court, which was essential to its
judgment, that the
respondent was a member of the Communist Party from
1945 is conclusive in subsequent deportation proceedings.
Matter of T-, 9 I&N Dec. 127 (BIA 1960).
4. Decisions in Extradition Proceedings
Decisions resulting from extradition proceedings
are not entitled to res judicata effect in later proceedings. The
parties to an extradition proceeding are not the same as in a deportation
proceeding since the real party in interest in extradition proceedings
is the foreign country seeking the respondent's extradition, not the
United States. Also, the res judicata bar goes into effect only where
a valid, final judgment has been rendered on the merits. It is well
established that decisions and orders regarding extraditability embody
no judgment on the guilt or innocence of the accused, but serve only
to insure that his culpability will be determined in another forum.
While deportation proceedings also do not serve to decide an alien's
guilt or innocence of a crime, those cases holding that extradition
decisions do not bind judicial bodies in later criminal proceedings
are also applicable to subsequent deportation proceedings. The issues
involved in a deportation hearing differ from those involved in an
extradition case, and resolution of even a common issue in one proceeding
is not binding in the other. Therefore, a magistrate's decision in
extradition proceedings that the crimes committed by the respondent
in a foreign country were political crimes barring his extradition
does not bind the BIA. Matter of McMullen, 17 I&N Dec. 542 (BIA
5. Decisions in Declaratory Judgment Cases
A suit under section 503 of the Nationality Act of
1940 for a judgment
declaring the respondent to be a national of the
United States is not the
same cause of action as a proceeding to deport the
respondent. Hence, the
doctrine of collateral estoppel cannot be invoked
in the deportation
proceeding as settling the issue of alienage, notwithstanding
dismissal of the declaratory judgment suit. In his
action for a judgment
declaring him to be a national of the United States,
the respondent has the
burden of proving his case by a preponderance of
the evidence. In
deportation proceedings, the INS has the burden of
proving alienage, and
where it is shown that the respondent acquired United
States citizenship by
birth in the United States, the INS must prove expatriation
unequivocal, and convincing evidence. Because of
the different burden of
proof involved, the doctrine of collateral estoppel
does not render
conclusive in deportation proceedings the findings
as to expatriation made
by the court in dismissing the respondent's suit
for a declaratory judgment.
Matter of H-, 7 I&N Dec. 407 (BIA 1957).
6. Decisions in Prior Deportation Proceedings or
Other Administrative Decisions
The doctrine of res judicata does not apply to administrative
the Executive Branch. Matter of M-, 8 I&N Dec.
535 (BIA 1960); Matter
of K-, 3 I&N Dec. 575 (BIA 1949). Therefore,
an alien found not to be
deportable by the BIA is subject to subsequent deportation
reason of a changed interpretation of the pertinent
statutes together with an
additional criminal conviction of the respondent.
Matter of K-, supra.
7. Miscellaneous Cases
a. The fact that a respondent was inspected and
to the United States by an INS officer does not operate
to estop the
INS from instituting a deportation proceeding against
respondent if it is later discovered that he was
excludable at the time of his admission. Matter of Khan, 14 I&N
Dec. 397 (BIA 1973); Matter of Polanco, 14 I&N Dec. 483 (BIA 1973).
b. A respondent admitted for permanent residence
in possession of an
immigrant visa issued to him as the spouse of a United
States citizen upon the basis of a visa petition approved by the INS
subsequent to the commencement but prior to the conclusion of deportation
proceedings instituted against his wife which resulted in a determination,
ultimately sustained by the United States Court of Appeals, that she
was not in fact a citizen of the United States is not immune to deportation
proceedings. Notwithstanding that the visa petition approval may have
been an erroneous act, there was no "affirmative misconduct,"
and the INS is not estopped in subsequent deportation proceedings
against the respondent from showing that his wife was not a citizen.
The fact that a formal decision was made on the visa petition does
not, by itself, give substantial weight to the respondent's estoppel
argument. The approval of the petition was by no means a final determination
of the citizenship claim of the respondent's wife. Matter of Morales,
15 I&N Dec. 411 (BIA 1975). This decision was based on a lack
of equitable estoppel rather than on the doctrine of collateral estoppel.
Under the doctrine of collateral estoppel, the respondent was not
a party to the previous visa petition proceeding. As to the deportation
proceedings brought against his wife, the doctrine of collateral estoppel
might not apply because the burden of proof may be different in visa
petition proceedings than in deportation proceedings.
c. Since applicants are not entitled to immediate
relative status on the
basis of claimed adoption in the Yemen Arab Republic
(which does not recognize the practice of adoption), the INS is not
estopped from excluding them under (former) section 212(a)(20) of
the Act as immigrants not in possession of valid immigrant visas
notwithstanding the erroneous approval of visa petitions
according them immediate relative status. Not only is the INS empowered
make a redetermination of an applicant's admissibility
at a port of entry with an immigrant visa, it is
under an absolute
duty to do so. See INA §§ 204(e) and 235(b);
see also Matter of
Mozeb, 15 I&N Dec. 430 (BIA 1975).
H. ADMINISTRATIVE NOTICE
1. Although immigration proceedings are not bound
by the Federal Rules of
Evidence, reference is made to the Federal Rules
of Evidence for the
purposes of definition and background.
2. Rule 201(b) provides that a judicially noticed
fact must be one not subject
to reasonable dispute in that it is either: (1) generally
known within the
territorial jurisdiction of the trial court; or (2)
capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.
3. Rule 201(c) provides that judicial notice is
discretionary and a court may
take judicial notice, whether requested or not. Rule
201(d) discusses when
judicial notice is mandatory and provides that a
court shall take judicial
notice if requested by a party and supplied with
the necessary information.
4. Rule 201(e) discusses the opportunity to be heard
and states that a party is
entitled upon timely request to an opportunity to
be heard as to the
propriety of taking judicial notice and the tenor
of the matter noticed. It
goes on to state that in the absence of prior notification,
the request may be
made after judicial notice has been taken.
5. The BIA has held that it is well established
that administrative agencies
and the courts may take judicial (or administrative)
notice of commonly
known facts. Matter of R-R-, 20 I&N Dec. 547
(BIA 1992) (citing Ohio
Bell Telephone Co. v. Public Utilities Commission,
301 U.S. 292 (1937)).
6. The issue of administrative notice arises most
often in the asylum context,
and the BIA has held that it may take administrative
notice of changes in
foreign governments. Matter of R-R-, 20 I&N Dec.
547 (BIA 1992) (citing
Wojcik v. INS, 951 F.2d 172 (8th Cir. 1991)); Janusiak
v. INS, 947 F.2d 46 (3d Cir. 1991); Kapcia v. INS, 944 F.2d 702 (10th
Kaczmarczyk v. INS, 933 F.2d 588 (7th Cir.), cert.
denied, 502 U.S. 981
(1991); Kubon v. INS, 913 F.2d 386 (7th Cir. 1990).
The BIA may take administrative notice of “commonly known facts
such as current events or the contents of official documents.”
8 C.F.R. §1003.1(d)(3)(iv).
7. The circuits are split on the issue of administrative
notice. The best practice is to advise the parties at the master calendar
hearing when you are taking the application for filing whether or
not you intend to take administrative notice of a change in country
conditions. This avoids challenges later that the parties did not
have a chance to furnish evidence relating to country conditions.
I. ITEMS WHICH ARE NOT EVIDENCE
1. The arguments of counsel and statements made
in a brief or on a Notice of
Appeal are not evidence and therefore not entitled
to any evidentiary
weight. See INS v. Phinpathya, 464 U.S. 183 (1984);
Matter of M/V
"Runaway", 18 I&N Dec. 127 (BIA 1981);
Matter of Ramirez-Sanchez, 17
I&N Dec. 503 (BIA 1980).
2. In an unpublished decision, the BIA held that
a copy of an unpublished
BIA decision presented to an Immigration Judge for
the purpose of
supporting the INS argument that certain published
should be applied to a respondent's case, does not
constitute "evidence" so
that the alien has a right to examine it or object
to it under 8 C.F.R. §
242.16(a) (1997). See 8 C.F.R. §§ 1240.10,
3. Evidence first submitted on appeal and not offered
at the trial level is not
considered by the BIA unless it is considered as
part of a motion to
remand. See Matter of Soriano, 19 I&N Dec. 764
(BIA 1988); Matter of
Arias, 19 I&N Dec. 568 (BIA 1988); Matter of
Obaigbena, 19 I&N Dec.
533 (BIA 1988); Matter of Estime, 19 I&N Dec.
450 (BIA 1987).