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  • Article: Regarding the Preponderance of the Evidence Standard of Proof by Joseph Whalen

    Regarding the Preponderance of the Evidence Standard of Proof

    by Joseph Whalen

    In the AAO non-precedential decision in a LIFE legalization case which was later upheld by 2nd Circuit[1] as well as interwoven with a collateral asylum case before an IJ which was upheld by the BIA, we find a well-written explanation of this standard of proof.

    "The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's claim is "probably true," where the determination of "truth" is made based on the factual circumstances of each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989)[2]. In evaluating the evidence, Matter of E-M- also stated that "[t]ruth is to be determined not by the quantity of evidence alone but by its quality." Id. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.

    Even if the director has some doubt as to the truth, if the applicant submits relevant, probative, and credible evidence that leads the director to believe that the claim is "probably true" or "more likely than not," the applicant has satisfied the standard of proof. See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining "more likely than not" as a greater than 50 percent probability of something occurring). If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application." Pp. 2-3

    As noted above, the preponderance standard relates to the quality rather than quantity of evidence. As I explain this to my clients and students, it is the preponderance of discernible, credible, and plausible facts and/or reasonable inferences which may be drawn from the evidence which matters most of all. Next, one must consider the relevance that those facts have upon the claim being made. These considerations are particularly applicable to the EB-5 Regional Center context. "How?" you ask. Let's explore that next. Public Law 102-395, as amended and codified as 8 USC 1153 Note, contains 610 which created and continues to authorize the EB-5 Regional Center Program, originally referred to as a "Pilot Program" and in reality since it has not been permanently made a part of the INA, it still is a "pilot" but is officially no longer referred to as a "pilot" in the statute. Of particular interest to this discussion is 610(c), which states in full: "In determining compliance with section 203(b)(5)(A)(iii)[(ii)] of the Immigration and Nationality Act [8 U.S.C. 1153(b)(5)(A)(iii)[(ii)]], and notwithstanding the requirements of 8 CFR 204.6, the Secretary of Homeland Security shall permit aliens admitted under the program described in this section to establish reasonable methodologies for determining the number of jobs created by the program, including such jobs which are estimated to have been created indirectly through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the program.[3]"

    The "preponderance of the evidence standard of proof" is highly applicable to the determination of what will be found acceptable as "reasonable methodologies" for determining the job creation counts and the nexus demanded to include certain "indirect jobs". When the above section was written and included a reference as to "notwithstanding 8 CFR 204.6" it was referring to that regulation, as it existed at that time[4]. 8 CFR 204.6 was modified in response to the creation of the original "Pilot Program". The in-depth analysis demanded for a proper determination in the EB-5 context is not a simple task. It is for this reason that case preparation and presentation are of paramount importance. The submission must be convincing. Among the specific evidence that MUST be included is either: (1) specific documentary evidence that the required jobs have already been created, or (2) "A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result, including approximate dates, within the next two years, and when such employees will be hired." See 8 CFR 204.6(j)(4)(i)(B) In the end, it's just not that simple! That's my two-cents, for now.

    1The AAO and 2nd Circuit cases are found at: http://www.slideshare.net/BigJoe5/al...combined-cases Additional cases to review include: Matter of Chawathe,25 I&N Dec.369 (AAO 2010) and Matter of Brantigan, 11 I&N Dec. 493 (BIA 1965).

    2Matter of E-M- is incorrectly posted as a BIA Decision on the EOIR website.

    3Found at:

    4See here and here


    About The Author

    Joseph Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.


    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
    Comments 1 Comment
    1. sfcooper's Avatar
      sfcooper -
      Nice commentary. Preponderance of the evidence analysis suffers when Matter of Caron is interpreted to erect a burden as high as an examiner wishes or to render it so subjective as to be equivalent to a consular officer's need to be satisfied. The totality of the evidence aspect of EB1a and EB1b review, articulated in the USCIS policy response to Kazarian, is another instance of subjectivity rule. While it is appropriate that USCIS has sought to improve its expertise in evaluation of EB5 case economics to avoid fraud and to assure conformance with at risk requirement, it has created an environment where the petitioner must not only provide probative, quality evidence but now may have to overcome the opinion of a USCIS economist. The very purpose of the conditional residence period to allow time for the petitioner to create the jobs is being preempted by conclusions by USCIS economists as to the long term viability of the business in the I-526 adjudication.
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