Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this chapter, and, if an alien, that he is entitled to the nonimmigrant, immigrant, special immigrant, immediate relative, or refugee status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this chapter. In any removal proceeding under part IV of this subchapter against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, but in presenting such proof he shall be entitled to the production of his visa or other entry document, if any, and of any other documents and records, not considered by the Attorney General to be confidential, pertaining to such entry in the custody of the Service. If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law.
Notes of Decisions
Landon v. Plasencia, 459 U.S. 21 (1982).
· cites it 2× “The BIA has accepted that decision, and although the Act provides that the burden of proof is on the alien in an exclusion proceeding, § 291, 8 U. S. C. § 1361 (1976 ed., Supp. V), the BIA has followed the practice of placing the burden on the Government when the alien is a…”
Intl. Refugee Assistance v. Donald J. Trump, 883 F.3d 233 (4th Cir. 2018).
· cites it 2× “It simply precludes the use of a nationality-based ban. Foreign nationals from the Designated Countries must still proceed through the standard individualized vetting process and prove that they are not inadmissible.”
Pedro Bustos-Torres v. Immigr. & Naturalization Serv., 898 F.2d 1053 (5th Cir. 1990).
· cites it 3× “Then 8 U.S.C. § 1361 3 imposes a statutory presumption that the alien is in the country illegally, and that the burden shifts to the alien to prove that he is here legally.”
Int'l Refugee Assistance Proj. v. Trump, 265 F. Supp. 3d 570 (D. Maryland 2017).
· cites it 3× “See 8 U.S.C. § 1361 . Dozens of former national, security officials have stated that this travel ban is unnecessary, that it serves no national security purpose, and that there is no evidence that the United.”
Travis Murphy v. Immigr. & Naturalization Serv., 54 F.3d 605 (9th Cir. 1995).
· cites it 3× “Having found alienage, the IJ then noted that Murphy had failed to demonstrate legal entry to combat the statutory presumption that he was present in the United States in violation of the law, pursuant to 8 U.S.C. § 1361 , which shifts the burden of proof to the alien to show…”
Alharbi v. Miller, 368 F. Supp. 3d 527 (E.D.N.Y 2019).
“at 2131 (citing 8 U.S.C. § 1361 ). Plaintiffs generally allege that defendants issued visa approval notices to them, thereby approving their visas, and then purposefully delayed in printing the visas and wrongfully relied on Proclamation 9645 to refuse them.”
Alvarez Sosa v. Barr, 369 F. Supp. 3d 492 (E.D.N.Y 2019).
“" 8 U.S.C. § 1361 . Thus, an individual petitioning for SIJ status "bears the burden of establishing eligibility [therefor].”
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