Regarding the Preponderance of the Evidence Standard of Proof
In the AAO non-precedential decision in a LIFE legalization case which was later upheld by 2nd Circuit as well as interwoven with a collateral asylum case before an IJ which was upheld by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). 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. 2-3As 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:
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.
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.