(a) Deportable aliens. A respondent charged with deportability shall be found to be removable if the Service proves by clear and convincing evidence that the respondent is deportable as charged.
(b) Arriving aliens. In proceedings commenced upon a respondent's arrival in the United States or after the revocation or expiration of parole, the respondent must prove that he or she is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged.
(c) Aliens present in the United States without being admitted or paroled. In the case of a respondent charged as being in the United States without being admitted or paroled, the Service must first establish the alienage of the respondent. Once alienage has been established, unless the respondent demonstrates by clear and convincing evidence that he or she is lawfully in the United States pursuant to a prior admission, the respondent must prove that he or she is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged.
(d) Relief from removal. The respondent shall have the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion. If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.
Notes of Decisions
Cited in
411
cases (
86 in the last 5 years), 2003–2026 · leading case:
Young v. Holder, 697 F.3d 976 (9th Cir. 2012).
Young v. Holder, 697 F.3d 976 (9th Cir. 2012).
· cites it 18× “§ 1229a(c)(4) and 8 C.F.R. § 1240.8 (d), the BIA observed that Petitioner had the burden of establishing his eligibility for cancellation, which thus required Petitioner to show that he had not been convicted of an aggravated felony.”
Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007).
· cites it 18× “8 C.F.R. § 1240.8 (a). Thus, this is a case in which a removable alien is seeking discretionary relief from *1124 removal by showing that he is eligible for cancellation of removal under 8 U.”
Jose Lopez-Vasquez v. Eric H. Holder Jr., 706 F.3d 1072 (9th Cir. 2013).
· cites it 4× “” See 8 C.F.R. § 1240.8 (d). Because Lopez-Vasquez is seeking relief from removal, the relevant standard should be the preponderance standard set forth in § 1240.”
Mr. Budiono v. Loretta E. Lynch, 837 F.3d 1042 (9th Cir. 2016).
· cites it 4× “§ 1229a(c)(4)(A); see also 8 C.F.R. § 1240.8 (d). “If the evidence indicates” that a mandatory bar to relief, such as the terrorist bar, may apply, “the applicant shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.”
M-b-c, 27 I. & N. Dec. 31 (BIA 2017).
· cites it 6× “Department of Justice Executive Office for Immigration Review Board of Immigration Appeals Where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of an application for relief may apply, the alien…”
Anh Le v. Loretta Lynch, 819 F.3d 98 (5th Cir. 2016).
· cites it 4× “IJ Walton determined, however, that Le was statutorily ineligible for adjustment of status because he did riot meet *103 “his burden of proof to show he was not convicted of an offense relating to a controlled substance” under 8 C.F.R. § 1240.8 (d). IJ Walton found that Le could…”
Rosas-Castaneda v. Holder, 655 F.3d 875 (9th Cir. 2011).
· cites it 12× “8 C.F.R. § 1240.8 (d). For a lawful permanent resident to prove eligibility for cancellation of removal, she must show that she has (1) been a lawful permanent resident for at least five years; (2) resided in the United States continuously for seven years, regardless of…”
Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017).
· cites it 3× “8 C.F.R. § 1240.8 (d) reiterates that the alien has “the burden of establishing that he or she is eligible for any requested benefit or privilege,” and further provides that where, as here, “the evidence indicates that one or more of the grounds for mandatory denial of the…”
Fredy Sanchez v. Eric Holder, Jr., 757 F.3d 712 (7th Cir. 2014).
· cites it 6× “The Board began its analysis by emphasizing that under 8 C.F.R. § 1240.8 (d), “[t]he respondent has the burden of establishing that he is eligible for any requested benefit,” and “[i]f the evidence indicates that one or more of the grounds for mandatory denial of the application…”
Aracely Marinelarena v. William Barr, 930 F.3d 1039 (9th Cir. 2019).
· cites it 7× “See 8 C.F.R. § 1240.8 (d) (“If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.”
Watson v. United States, 865 F.3d 123 (2d Cir. 2017).
· cites it 2× ““A respondent charged with deportability shall be found to be removable if the [government] proves by clear and convincing evidence that the respondent is deportable as charged,” 8 C.F.R. § 1240.8 , an easier burden to meet than the criminal reasonable doubt standard.”
Y-l, 24 I. & N. Dec. 151 (BIA 2007).
· cites it 2× “See 8 C.F.R. § 1240.8 (d) (2006) (providing that the alien shall have “the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion”).”
— 8 C.F.R. § 1240.8(a) — 2 cases
— 8 C.F.R. § 1240.8(c) — 1 case
— 8 C.F.R. § 1240.8(d) — 4 cases
M-m-a, 28 I. & N. Dec. 494 (BIA 2022).
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