Ward v. Holder

Decision Date15 August 2013
Docket NumberNo. 12–3197.,12–3197.
PartiesLeslie WARD, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ON BRIEF:George P. Mann, Maris J. Liss, George P. Mann And Associates, Farmington Hills, Michigan, for Petitioner. Remi da Rocha–Afodu, United States Department of Justice, Washington, D.C., for Respondent.

Before: MARTIN, SUHRHEINRICH, and GIBBONS, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Leslie Ward petitions this Court to review the Board of Immigration Appeals's order affirming the Immigration Judge's order that he be removed to the United Kingdom. The Board agreed with the Immigration Judge that Ward had abandoned his lawful-permanent-resident status by spending three years in the United Kingdom caring for his mother, who suffered from dementia.

This case poses the following legal question: what is the appropriate degree of proof that the government must satisfy in a removal proceeding in which the government has charged a lawful permanent resident with inadmissibility? We hold that the government must prove—by clear, unequivocal, and convincing evidence—the lawful permanent resident's inadmissibility. Because the Immigration Judge erred, as a matter of law, both in applying the wrong degree of proof and in assigning the burden of proof to the immigrant, Ward, instead of to the government, we GRANT the petition for review, VACATE the Board of Immigration Appeal's decision, and REMAND this case for further proceedings consistent with this opinion. As a consequence, we also VACATE the stay that we previously granted.

The government granted Leslie Ward, a fifty-year-old man from the United Kingdom, lawful-permanent-resident status in 1995. Ward left the United States in 2003 to take care of his mother, who suffered from dementia, in the United Kingdom. Then, in February 2006, Ward returned to the United States seeking admission as a returning resident. Although not entirely clear from the record, it appears that when Ward arrived at the Detroit, Michigan airport, he presented Customs and Border Patrol with an expired green card; consequently, the government charged Ward as “subject to removal from the United States” under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, as an immigrant who, “at the time of application for admission[,] did not possess “a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Chapter ...” 8 U.S.C.A. § 1182(a)(7)(A)(i)(I). The government further asserted that Ward was inadmissible because he had “abondoned [sic][his] permanent resident status.”

Ward requested a hearing before an Immigration Judge on whether he was removable based on his inadmissibility to the United States because he had abandoned his lawful-permanent-resident status. At the hearing, the government called Ward to testify in its case-in-chief, but it called no other witnesses. Ward testified in his behalf, and his brother also testified. Both sides also introduced documentary evidence. In an oral opinion issued the same day as the hearing, the Immigration Judge held that “the charge of removability ha[d] been sustained by the requisite clear and convincing evidence. (emphasis added). In a short opinion, the Board adopted and affirmed the Immigration Judge's order and added its own comments. Ward timely appealed. Subsequently, we granted Ward's motion to stay the Board's removal order.

Where, as here, the Board adopts the Immigration Judge's reasoning, but adds its own comments, we review both the Immigration Judge's decision and the Board's additional remarks. Karimijanaki v. Holder, 579 F.3d 710, 714 (6th Cir.2009) (citing Gilaj v. Gonzales, 408 F.3d 275, 282–83 (6th Cir.2005)).

We review de novo the Board's conclusions of law. Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir.2004) (citing Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir.2004)) (rest of string citation omitted).

We begin by clarifying (hopefully) some rather confusing terminology that we will apply throughout this opinion. Before 1996, the name of the process by which the government expelled a non-citizen from the United States depended on where the government caught the person. If the government caught the person at the border (or in an airport), the government put the person into “exclusion” proceedings and charged the person under one of the “inadmissibility” grounds enumerated in the Act's section 212(a). 8 U.S.C.A. § 1182(a). But if the government caught the person in the United States's interior, the government put the person into “deportation” proceedings and charged the person under one of the “deportability” grounds enumerated in the Act's section 237(a). 8 U.S.C.A. § 1227(a). Then, Congress passed the Illegal Immigration Reform and Responsibility Act of 1996, which combined the terms “deportation” and “exclusion” into the term “removal.” SeePub.L. No. 104–208, § 304, 110 Stat. 3009 (1996). After 1996, then, the proceeding in which the government sought to expel a non-citizen from the United States—whether the person was apprehended at the border or in the interior—was called a removal proceeding, not a “deportation” or “exclusion” proceeding. But Congress did not change the categories under which the government may charge a person with being present unlawfully in the United States. The Act, after 1996, still refers to two categories of grounds for removability: the government may either charge an immigrant as being “inadmissible,” under the Act's section 212(a) (8 U.S.C.A. § 1182(a)), or as being “deportable” under the Act's section 237(a) (8 U.S.C.A. § 1227(a)).

Also in 1996, Congress changed the degree of proof for removal proceedings in which the government charged an immigrant with one of the deportability grounds under the Act's section 237(a). Before 1996, the Act had not mentioned the correct degree of proof that the government had to satisfy in deportation proceedings; the question made its way to the Supreme Court, which held that the degree of proof that the government had to satisfy to deport someone was “by clear, unequivocal, and convincing evidence.” Woodby v. I.N.S., 385 U.S. 276, 277, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966).

But in 1996, Congress added section 240 to the Act. See Illegal Immigration Reform and Responsibility Act, Pub.L. No. 104–208, § 304, 110 Stat. 3009 (1996). In adding this section, Congress lowered the degree of proof that the government had to satisfy in cases in which it sought to remove someone based on a deportability ground. Specifically, section 240(c)(3)(A) provided “in cases of deportable aliens”—that is, in cases in which the government sought to deport someone based on one of the deportability grounds in the Act's section 237(a)—that the government “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.” 8 U.S.C.A. § 1229a(c)(3).

But Congress did not change the degree of proof that the government must satisfy in removal cases in which the government charges a lawful permanent resident with one of the inadmissibility grounds. The “question of what degree of proof is required” in a proceeding “is the kind of question which has traditionally been left to the judiciary to resolve [.] Woodby, 385 U.S. at 284, 87 S.Ct. 483. Our Circuit and others have resolved this question. Where the government seeks to remove a lawful permanent resident based on an inadmissibility ground, and specifically claims that the person has abandoned his or her lawful-permanent-resident status, it must prove by clear, unequivocal, and convincing evidence that the lawful permanent resident is inadmissible.

For example, in Hana v. Gonzales, 400 F.3d 472 (6th Cir.2005), the first published case in our Circuit to address the fact pattern of a lawful permanent resident charged as removable based on a ground of inadmissibility—of supposed abandonment of lawful-permanent-resident status—we held that the government's degree of proof was ‘to establish by clear, unequivocal, and convincing evidence’ that the lawful permanent resident's status had changed. Hana, 400 F.3d at 475–76 (quoting Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir.1997) (citing Woodby, 385 U.S. at 277, 87 S.Ct. 483)).

In addition to the Ninth Circuit and our Circuit, the First, and the Fifth Circuits have faced the same fact pattern and have held that the government must prove inadmissibility by clear, unequivocal, and convincing evidence. See Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir.2005) (holding that the government “has the burden of proving that he is not admissible ... by clear, unequivocal and convincing evidence.”); accord Moin v. Ashcroft, 335 F.3d 415, 419 (5th Cir.2003) (holding that the government may refute an alien's intent to return “by clear, unequivocal, and convincing evidence.”).

The distinction between, on the one hand—clear, unequivocal, and convincing evidence—and, on the other—clear and unequivocal evidence—may seem inconsequential. One might think that deleting “convincing”1 does not make any difference. Indeed, a prior panel of our court said as much. See Pickering v. Gonzales, 465 F.3d 263, 268 n. 3 (6th Cir.2006) (acknowledging the 1996 amendment of section 240(c)(3)(A) ( 8 U.S.C. § 1229a(c)(3)), but noting that “the amendment ha[d] only a minimal effect on the standard, if any, because evidence that is ‘equivocal’ could not be considered ‘clear and convincing.’).

But the Supreme Court has said otherwise. In Addington v. Texas, 441 U.S. 418, 419–20, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the Court considered “what [degree] of proof is required ... in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital.” The Court concluded that a...

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