Giving Substance to Predictions-Verification-Back End Burden of Proof
Some benefits under the Immigration and Nationality Act (INA) or related provisions require making the case up-front or "at time of filing", some decisional processes can be drawn out until the "time of adjudication", and some benefits are themselves "temporary" or "interim" in nature. Another class of benefits are "definite maybes" from the start or "iffy at best" and will rely on a later demonstration of fulfillment in order to become permanent or remain in force. In other words, one might be afforded the "benefit of the doubt" up-front, or will be allowed to place the government "on notice of intent" and will be required to substantiate the results, or fulfill obligations and/or commitments, or verify continuing eligibility at a later date. This last grouping utilizes what I refer to as a "back-end burden of proof". This essay will discuss three contexts that utilize this concept: extended absence benefits, conditional residence, and withholding of removal. First, a quick look at the meaning of substantiation is in order.________________________________________
sub·stan·ti·ate (s b-st n sh - t )
tr.v. sub·stan·ti·at·ed, sub·stan·ti·at·ing, sub·stan·ti·ates
1. To support with proof or evidence; verify: substantiate an accusation. See Synonyms at confirm.
3. To give substance to; make real or actual.________________________________________
[New Latin substanti re, substanti t-, from Latin substantia, substance; see substance.]________________________________________
sub·stan ti·a tion n.________________________________________ ________________________________________
Noun 1. substantiation - additional proof that something that was believed (some
fact or hypothesis or theory) is correct; "fossils provided further confirmation of the evolutionary theory"
Extended Absence Benefits:
The N-470,Application to Preserve Residence for Naturalization Purposes is used as a means to either place USCIS "on notice" of an one's intent to be absent from the U.S. for an extended period for an authorized purpose under INA § 316(b), or to substantiate that an absence will be or was for as authorized under INA § 317 under certain circumstances. In either broad scenario, the claim may or may not stand up to scrutiny in connection with a future N-400, Application for Naturalization. In regard to INA § 316(b), advance notice via the form N-470 is required of the future naturalization applicant. Under provisions of INA § 317, the use of the form N-470 is optional but not required. The ultimate resolution of the issue will be finally decided during the actual N-400 naturalization proceedings.
It is during the N-400 adjudication process when the "back end burden of proof" comes into play. In order to benefit from the statutorily prescribed extended absence benefits, the naturalization applicant will be called upon to prove that they actually did what they said they would do (or claim to have done) during that long absence in addition to all other statutory requirements. The naturalization applicant must therefore, substantiate their claim by production of corroborating evidence.
The "conditional lawful permanent resident" (CR), is issued such status based on either:
The CR is afforded status for an initial two (2) years. Within the ninety (90) days before the expiration of that period, they must file a request to lift conditions from status. During that follow-up process they are called upon to substantiate fulfillment of commitments. They must, as applicable, prove either that:
Withholding of Removal (WOR):
These folks are normally failed asylum applicants. They could not meet the requirements for asylum or were statutorily barred and were ordered removed from the United States. However, the United States has afforded them protection through WOR because their lives or freedom remain in jeopardy.
If at a later date:
then the determination to afford protection may be revisited.
During any review or challenge to continued protection through withholding, the recipient of WOR protection may offer evidence to rebut any presumption of safe return or changed conditions in the country of removal/return, or the threat they presumably pose. The production of corroborating evidence may overcome countervailing evidence, or successfully rebut any presumption. That would entail the substantiation of continuing eligibility or meeting a "back-end burden of proof".________________________________________
Understanding what is required allows one to be better prepared to meet the challenge. A lack of clear direction and misunderstanding or underestimating goals is a detriment to proper case preparation and presentation. Good Luck!
Joseph P. 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 do not necessarily reflect the opinion of ILW.COM.