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Citations for ILW.COM's Seminar
"Thrive-Talkin’ - Cutting-Edge Strategies to Grow Your Immigration Practice in 2006"
Session 3 held on February 2, 2006

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From Gregory Siskind

From Angelo Paparelli

DOS Cable On Students' Immigrant Intent,1108-cable.shtm

++ INA § 214(b): The B, F, J, M, O-2, P, and Q visa classifications require the visa applicant to satisfactorily demonstrate that s/he possesses a residence abroad that s/he has no intention of abandoning.

++ SUBJECT: Students and Immigrant Intent

Provides guidance for consular officers in how to interpret the immigrant intent provisions when adjudicating student visa applications.

Consular officers adjudicating student visa applications should evaluate the applicant's requirement to maintain a residence abroad in the context of the student's present circumstances; they should focus on the student applicant's immediate and near-term intent.

Students typically stay in the U.S. longer than do many other non-immigrant visitors. In these circumstances, it is important to keep in mind that the applicant's intent is to be adjudicated based on present intent - not on contingencies of what might happen in the future, during a lengthy period of study in the United States.

The typical student is young, without employment, without family dependents, and without substantial personal assets.

Students may have only general rather than specific plans for the future. These personal circumstances differ greatly from those of persons usually qualifying for B-1's or P visas for example. The residence abroad requirement for a student should therefore be considered in a broader light, focusing on the student applicants' immediate intent. While students may not be able to demonstrate strong "ties", their typical youth often conveys a countervailing major advantage in establishing their bona fides: they don't necessarily have a long-range plan, and hence are relatively less likely to have formed an intent to abandon their homes.

++ Matter of Hosseinpour, 15 I & N. Dec. 191, 192 (BIA 1975) (dictum) ("Moreover, courts have held that a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status") (citations omitted); Choy v. Barber, 279 F.2d 642, 646 (9th Cir. 1960) (wish to remain if legal opportunity arises is not inconsistent with nonimmigrant status); Chryssikos v. Comm'r of Immigration, 3 F.2d 372, 375 (2d Cir. 1924) ("But there is a great difference between wanting to stay and intending to stay. And proof of a desire to stay is not proof of an intent to stay").

++ Burden of proof.
MATTER OF CHAWATHE - an AAO adopted decision
Involving Preservation of Residence for Naturalization Proceedings
Decided by the Director, Administrative Appeals Office,
January 11, 2006, and designated as a precedent decision the same by Robert Divine.

++ Immigration and Nationality Act Sec. 103. [8 U.S.C. 1103] (a)(1) The Attorney General shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens, except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.

++ Except where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought.

See e.g. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings); Matter of Patel, 19 I&N Dec. 774, 782-3 (BIA 1988) (noting that section 204(a)(2)(A) of the Act requires a higher standard of clear and convincing evidence to rebut the presumption of a fraudulent prior marriage); Matter of Soo Hoo, 11 I&N Dec. 151, 152 (BIA 1965) (finding that the petitioner had not established eligibility by a preponderance of the evidence because the submitted evidence was not credible).

The standard of proof should not be confused with the burden of proof.

The burden of proving eligibility for the benefit sought remains entirely with the applicant. See Immigration and Nationality Act section 291.

The "preponderance of the evidence" standard does not relieve the petitioner or applicant from satisfying the basic evidentiary requirements set by regulation. If there are no regulations relating to the issue at hand, and requiring specific evidence, the applicant would have been required to submit that evidence. Cf. 8 C.F.R. § 204.5(h)(3) (requiring that specific objective evidence be submitted to demonstrate eligibility as an alien of extraordinary ability).

  • 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."
    • 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 petitioner 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 or petitioner 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 or petition.