He Loves Me . . . He Loves Me Not Anymore?!: How the Bona Fides of a Marriage for an Approved Spousal Petition Can Depend on Whether the Burden of Proof in Revocation Proceedings Under Ina § 205 Is on Uscis or the Petitioner

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 2 No. 2

Nathan J. Chan^*

Abstract: Even though INA § 205 plainly states that USCIS must have "good and sufficient cause" to revoke the approval of an immigrant petition, USCIS, the BIA, and even some courts inexplicably place the burden of proof in revocation proceedings on the petitioner to prove that the beneficiary still qualifies for the immigration benefit sought, not on USCIS to prove that revocation of the previously approved benefit is justified. The consequences of this issue are perhaps most pronounced with spousal petitions, where the bona fides of the underlying marital relationship can depend on which party has the burden of proving (or disproving) this highly evidence-based question of fact. This article takes a deep look into all of the possible arguments/justifications for placing the burden of proof in revocation proceedings on the petitioner to "re-prove" a bona fide marriage and not on USCIS to prove a sham marriage.

The Problem: Placing the Burden of Proof on the Petitioner in Revocation Proceedings Goes Against Both the Plain and Administratively Interpreted Meaning of INA § 205

Semper necessitasprobandi incumbit ei qui agit—The necessity of proof always lies with the person who lays charges.¹

Actori incumbit onus probandi—The burden of proof rests on the party who advances a proposition affirmatively.²

Affirmati non neganti incumbitprobatio—The burden of proof is upon him who affirms—not on him who denies.³

The basic legal principle of burden of proof (BOP) embodied in these Latin maxims—that the party claiming something to be true has the duty to persuade the decision maker with evidence⁴—is about as well settled as there is in the legal realm. As the Supreme Court has put it, "[T]he ordinary default rule [is] that . . . [t]he burden[] of . . . proof . . . should be assigned to the [party] who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure . . . ."⁵

[Page 191]

Yet in two of the author's recent cases involving approved spousal petitions⁶—where a U.S. citizen-petitioner files an immigrant petition to classify his wife as an "immediate relative" under the Immigration and Nationality Act (INA) § 204, and upon approval the alien-beneficiary applies for a visa or adjustment of status—the United States Citizenship and Immigration Services (USCIS) initiated proceedings under INA § 205 to revoke such approval due to purported marriage fraud but stated in the Notices of Intent to Revoke (NOIR), "[T]he petitioner bears the burden in visa petition revocation proceedings of establishing that the beneficiary qualifies for the benefit sought under the immigration laws" (emphasis added). Since the petitioners had already proven the bona fides of their marriages to get the petitions approved originally, USCIS incorrectly shifted its burden of proving that the marriages are fraudulent to the petitioners to re-prove that their marriages are real.

USCIS's position on the BOP for revoking approved petitions is inconsistent with the BOP for revoking essentially every other immigration/nationality benefit under the INA:⁷

1. Deportation (i.e., revocation of admission) under INA § 237: "In the proceeding [USCIS] 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."
2. Termination of conditional permanent resident status under INA § 216(b) for improper qualifying marriage: "Any alien whose permanent resident status is terminated [for improper qualifying marriage] may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that a condition [of such impropriety] is met."
3. Termination of conditional permanent resident status under INA § 216(c)(3) for untrue facts and information in the petition for removal of conditions: "Any alien whose permanent resident status is terminated [for untrue facts and information in the petition for removal of conditions] may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that [such] facts and information . . . are not true with respect to the qualifying marriage."
4. Rescission of adjustment of status under INA § 246: "If . . . it shall appear to the satisfaction of the Attorney General that [a] person was not in fact eligible for . . . adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person . . . ." The Third, Sixth, and Ninth Circuits and the Board of Immigration Appeals (BIA), at least, have interpreted this as placing the BOP on the U.S. government.⁸
5. Revocation of naturalization under INA § 340(a): "It shall be the duty of the United States attorney[] . . . , upon affidavit showing good cause therefor, to institute proceedings . . . for the purpose of revoking and setting aside the order admitting [the naturalized citizen] to citizenship . . . on the ground that such order [was] illegally procured or [was] procured by concealment of a material fact or by willful misrepresentation . . . ." As the Supreme Court has clarified, "[T]he Government carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship. The evidence justifying revocation of citizenship must be clear, unequivocal, and convincing and not leave the issue in doubt."⁹
6. Loss of nationality under INA § 349: "Whenever the loss of United States nationality is put in issue . . . , the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence."

[Page 192]

More importantly, USCIS's position goes against the plain meaning of INA § 205, which states, "The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under [INA § 204]" (emphasis added). "For cause," of course, means that USCIS must have a justifiable reason for revoking an approved petition¹⁰—which with many spousal petitions means USCIS is claiming that the marriage is a sham.

Indeed, in Matter of Tawfik, the BIA interpreted "good and sufficient cause" (GSC) as referring only to affirmative evidence of a sham marriage, not a lack or absence of evidence of a bona fide marriage: "[T]here [must be] a substantial and probative evidentiary basis for a finding that [a] marriage was entered into for the purpose of evading the immigration laws . . . ."¹¹ The BIA did not state that GSC exists when the petitioner has failed to prove that his marriage is bona fide.¹²

Furthermore, the rest of the operative words in INA § 205—"revoke the approval of any petition approved . . . under [INA § 204]"—are also clear.¹³ "Revoke," of course, means to recall something that was granted previously,¹⁴ as opposed to "deny," which means to refuse to grant.¹⁵ And the word "approval" and past-tense phrase "approved . . . under [INA § 204]" confirm that revocation can only occur after approval. Therefore, INA § 205 clearly indicates that USCIS initiates revocation proceedings to change the petition's status from approved to revoked, so the three Latin maxims above dictate that USCIS must bear the BOP.

[Page 193]

Given the BIA's reasonable interpretation of GSC in Matter of Tawfik, how did USCIS come to embrace such a clear error of law? Indeed, even the Department of State (DOS), a different agency, recognizes the correct legal rule.¹⁶ In a perhaps perfect example of "hard cases make bad law," a separate body of precedent seems to have arisen from two BIA cases that had odd fact patterns. Over time, the error became entrenched in petition-revocation jurisprudence when future BIA and even Ninth Circuit decisions cited these cases directly and indirectly.

But first, why does it even matter which party has the BOP in revocation proceedings? After all, each party gets one chance to present its evidence and arguments—USCIS lays out its reasons for revocation in the NOIR, then the petitioner must have a chance to respond¹⁷—before USCIS makes its decision based on the entire record. Therefore, the outcome would seem to depend solely on which party has the stronger arguments and evidence during these proceedings.

Significance of BOPs: BOPs Matter Most When Evidence Is Unavailable, and They also Help the Unburdened Party to Test the Strength of the Burdened Party's Arguments and Evidence

BOPs prescribe the default winner when the burdened party's evidence does not establish their alleged facts to the degree of clarity required for that type of case (i.e., the standard of proof)—substantial evidence, a preponderance in civil cases, beyond a reasonable doubt in criminal cases, and so forth. In civil cases—where the preponderance standard requires evidence showing more likely than not, or greater than 50 percent clearly, that the plaintiff's allegations are true—BOPs are referred to as "tiebreakers"¹⁸ since the defendant will win by default if the evidence only shows a 50/50 likelihood that the plaintiff's claims are true.

The purpose of BOPs is to preserve the status quo of the parties' legal relationship unless there is clear enough evidence that it should change. In other words, the risk of losing the case is placed on the party seeking to change the current situation and away from the party who risks losing something.¹⁹ The quintessential example is the BOP on the state in criminal proceedings, where the accused's liberty is at stake: The risk of error is on society so as to avoid convicting any innocent people, even at the expense of failing to convict some guilty ones.

During spousal petition revocation proceedings, if the...