United States Court of Appeals
For the First Circuit
No. 24-1240
LECY FREDERICO ROSA; M.E.F.; MARISTELA GOMES-DE SOUZA FREDERICO,
Petitioners,
v.
PAMELA J. BONDI,*
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Montecalvo and Kayatta,…
Circuit Judges.
Annelise M. J. de Araujo and Stefanie Fisher-Pinkert, with
whom Araujo & Fisher, LLC, was on brief, for petitioners.
Gregory A. Pennington, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
with whom Brian M. Boynton, Principal Deputy Assistant Attorney
General, Civil Division, Nancy E. Friedman, Senior Litigation
Counsel, Office of Immigration Litigation, and Justin Markel,
*Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Pamela J. Bondi has been substituted for former Attorney General
Merrick B. Garland as the respondent.
… Judge Selya heard oral argument in this case and
participated in the initial semble thereafter. His death on
February 22, 2025, ended his involvement in this case. The
remaining two panelists issued this opinion pursuant to
28 U.S.C. § 46(d).
Senior Litigation Counsel, Office of Immigration Litigation, were
on brief, for respondent.
March 13, 2025
PER CURIAM. This is a petition for judicial review of
a final order of the Board of Immigration Appeals (BIA), which
affirmed a denial of a motion to terminate removal proceedings.
Concluding, as we do, that the agency applied an incorrect standard
of proof, we remand to the agency for further proceedings
consistent with this opinion.
I
We briefly rehearse the relevant facts and travel of the
case. The lead petitioner, Lecy Frederico Rosa, his wife and
co-petitioner, Maristela Gomes-De Souza Frederico, and their minor
child, M.E.F., entered the United States without inspection on or
about January 27, 2022, near El Paso, Texas.1 They soon encountered
Customs and Border Patrol (CBP) agents and were formally placed in
removal proceedings by notices to appear (NTAs) dated February 3,
2022. The NTAs alleged that the petitioners were citizens of
Brazil and charged that they were removable as aliens present in
the United States without having been admitted or paroled. See
8 U.S.C. § 1182(a)(6)(A)(i); see also
8 U.S.C. § 1101 (defining an
"alien" under U.S. law as "any person not a citizen or national of
the United States"). The petitioners denied these charges.
1For ease of reading, we sometimes refer to Rosa as if he
were the sole petitioner. Our decision, of course, is binding
upon his co-petitioners as well.
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At a hearing on February 1, 2023, an immigration judge
(IJ) ordered the Department of Homeland Security (DHS) to submit
evidence of the petitioners' alienage, that is, evidence that the
petitioners were aliens under U.S. law. In response, DHS proffered
an "EARM Summary" for each petitioner.2
Each such summary contained information about a
particular petitioner, including his or her name, date of birth,
A-number, physical description, location and date of the encounter
with CBP, familial relationships, and occupation. Notably, the
EARM Summary for each petitioner stated that his or her country of
citizenship was Brazil. Every EARM Summary also included an I-213
section that contained information in narrative form about the
petitioner's encounter with CBP.
On March 14, 2023, the petitioners moved to terminate
their removal proceedings. They asserted that DHS had failed to
carry its burden of establishing alienage because the EARM
Summaries did not constitute sufficient or reliable evidence.
Specifically, the petitioners asserted that the EARM Summaries
2 EARM is an acronym (standing for the ENFORCE Alien Removal
Module) describing a software that is a part of DHS's Enforcement
Integrated Database. That database, in turn, is a repository of
information for use in law enforcement and homeland security
applications. See U.S. Dep't of Homeland Sec., Privacy Impact
Assessment Update for the Enforcement Integrated Database (EID)
(2018), https://perma.cc/6UD3-Z8PN.
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lacked certain pertinent information and contained material
inaccuracies.
For example, the EARM Summaries did not contain names of
the CBP and DHS agents involved in the encounters (including
encounter event supervisors). So, too, those Summaries omitted
any information about the two adult petitioners' parentage, their
parents' nationalities, and the towns where they were alleged to
have lived prior to entering the United States. Additionally, the
EARM Summaries included generic language in the I-213 narrative
section without identifying whether the statements applied to the
petitioners.3 The petitioners also alleged that the lead
petitioner's EARM Summary incorrectly referred to him using
feminine pronouns.
There was more. The petitioners noted that the EARM
Summaries stated that they were fluent in Portuguese. Each EARM
Summary made clear, however, that the administrative warnings were
provided in Spanish. The documents nowhere indicated that a
Portuguese interpreter participated in their preparation.
Finally, the narratives within the EARM Summaries were dated a
week after the date of the alleged encounter with CBP. All that
3 Those statements included representations that "If child is
14 and over, the child signed the forms in the presence of the
parent" and "Juveniles the age of 13 and below were enrolled into
e3 only due to their age." They did not specify whether any such
juvenile was involved in a particular encounter.
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being said, the forms state that petitioners are citizens of
Brazil, and petitioners offer no direct rebuttal to those
statements. Rather, they contend that the errors to which they
point render all statements in the form so unreliable as to be
incapable of proving alienage.
The IJ denied the petitioners' motion to terminate their
removal proceedings. See 8 C.F.R. § 1240.12 (allowing immigration
judges to terminate proceedings). Relying on the EARM Summaries,
the IJ determined that DHS had carried its burden of establishing
alienage by "clear and convincing" evidence. An order for the
removal of all three petitioners followed.
The petitioners appealed to the BIA. They maintained
that the appropriate degree of proof required to establish alienage
was "clear, unequivocal, and convincing evidence." The IJ had not
applied this standard but, rather, had required DHS to show
alienage only by "clear and convincing evidence." In the
petitioners' view, the EARM Summaries did not clear this bar.
The BIA rejected the petitioners' arguments. It
concluded that there was no difference between the two standards
and that those standards -- "clear and convincing evidence" and
"clear, unequivocal, and convincing evidence" -- had identical
meanings. It further concluded that the EARM Summaries were
sufficiently reliable to satisfy this evidentiary standard. Based
on these findings, the BIA denied the petitioners' appeal.
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This timely petition for judicial review ensued.
II
"Where, as here, the BIA's decision rests primarily on
the IJ's decision, we review the two decisions as a unit." Garcia
Oliva v. Garland, 120 F.4th 1, 5 (1st Cir. 2024). Because that is
the posture in which this case arises, we sometimes refer to the
IJ and the BIA jointly as "the agency."
We review conclusions of law, including determining the
applicable burden of proof, de novo. See Vargas-Salazar v.
Garland, 119 F.4th 167, 172 (1st Cir. 2024); see also Est. of
Abraham v. Comm'r of Internal Revenue,
408 F.3d 26, 35 (1st Cir.
2005) (describing the burden of proof as a question of law),
amended per curiam,
429 F.3d 294 (1st Cir. 2005). Conversely,
"[w]e review 'factual findings . . . under the familiar
substantial evidence standard.'" Loja-Paguay v. Barr,
939 F.3d
11, 15 (1st Cir. 2019) (cleaned up) (quoting Rivas-Mira v. Holder,
556 F.3d 1, 4 (1st Cir. 2009)). This standard directs that, as
long as the agency's factual determination is "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole," we must accept it. Mazariegos-Paiz v.
Holder,
734 F.3d 57, 64 (1st Cir. 2013) (quoting INS v.
Elias-Zacarias,
502 U.S. 478, 481 (1992)).
In removal proceedings, DHS "need only establish the
respondent's identity and alienage to meet its burden on
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deportation." Navarro-Chalan v. Ashcroft, 359 F.3d 19, 22 (1st
Cir. 2004); see
8 C.F.R. § 1240.8(c). "The burden then shifts to
the respondent . . . to defeat deportation." Id.; see
8 C.F.R.
§ 1240.8(c).
III
It is undisputed that DHS had the burden of proof to
show that the petitioners were aliens as defined by the Immigration
and Nationality Act (INA). See Immigration and Nationality Act of
1952, Pub. L. No. 82-414, § 101(a)(3),
66 Stat. 163, 166 (codified
as amended at
8 U.S.C. § 1101(a)(3)). However, the petitioners
first argue that both the IJ and the BIA failed to require the DHS
to meet the proper standard of proof in fulfilling its burden.
The petitioners construct this argument on the premise
that -- under Woodby v. INS, 385 U.S. 276 (1966) -- the appropriate
degree of proof required for establishing alienage is "by clear,
unequivocal, and convincing evidence."
Id. at 286. This standard,
they suggest, is not only distinct and apart from the "clear and
convincing" standard that the agency applied but also more
demanding. For the reasons that follow, we agree with the
petitioners that the "clear, unequivocal, and convincing" standard
is distinct from the "clear and convincing" standard. We also
agree that the agency should have applied the former standard.
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A
Some background supplies a useful starting point for our
analysis. The INA was first enacted in 1952. See Immigration and
Nationality Act of 1952, Pub. L. 82-414, 66 Stat. 163. The
original version of the INA established the framework for removal
proceedings.
Id. But at that time, the statute lacked standards
of review and burdens of proof for certain proceedings, including
"the degree of proof required at the administrative level in
deportation proceedings." Woodby,
385 U.S. at 282.
In Woodby, the Supreme Court closed this gap, holding
that "no deportation order may be entered unless it is found by
clear, unequivocal, and convincing evidence that the facts alleged
as grounds for deportation are true." Id. at 286. Subsequently,
the INA was amended. These amendments included the addition of
8 U.S.C. § 1229a, which established procedures for removal
proceedings. This section applies generally to both people who
are charged under § 1182(a) as inadmissible aliens (a
classification into which the petitioners allegedly fit) and
people who are charged under § 1227(a) as admitted but deportable
aliens (a classification into which the petitioners do not fit).
We think it significant that, in some matters, inadmissible aliens
and deportable aliens are treated differently by the statutory
scheme. This disparate treatment is not a mere matter of
coincidence.
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By way of example, § 1229a(c)(3) supplants Woodby by
establishing a degree of proof for deportation purposes -- but
this standard applies only to deportable aliens. It provides that,
in cases of deportable aliens, "the [government] has the burden of
establishing by clear and convincing evidence that, in the case of
an alien who has been admitted to the United States, the alien is
deportable." Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, § 240(c)(3)(A),
110 Stat. 3009-546, -592 (codified at 8 U.S.C. § 1229a(c)(3)(A)).
That statutory provision is silent, however, as to the degree of
proof required in the case of inadmissible aliens.
B
The first challenge mounted by the petitioners relates
to the appropriate burden of proof imposed on DHS to demonstrate
the petitioners' alienage. This challenge need not detain us: as
described above, the Woodby Court set the degree of proof
supporting deportation orders as "clear, unequivocal, and
convincing." And even though most of the subsequent additions in
§ 1229a apply to removal proceedings for both inadmissible and
deportable aliens, § 1229a(c)(3)(A) remains in full effect and
only prescribes the degree of proof required in the case of the
latter. Congress was silent on the degree of proof required in
removal proceedings for inadmissible aliens. And we take this
silence to mean that Congress intentionally left the status quo
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intact. See United States v. Clark, 454 U.S. 555, 564 (1982)
("Congress'[s] failure to correct [a] practice, if it did not
correspond with congressional intent, at the very time Congress
was revamping the laws applicable . . . provides further evidence
of its intent [that the status quo should remain].").
Consequently, we agree with the petitioners that the Woodby
standard still applies to inadmissible aliens and, therefore, DHS
had to present "clear, unequivocal, and convincing evidence" of
alienage.
C
The next question, then, is whether the term
"unequivocal" imparts a heightened meaning to the degree of proof
required. In other words, does "clear, unequivocal, and convincing
evidence" mean something different (and presumably, more onerous)
than "clear and convincing evidence"? We agree with the
petitioners that it does.
When addressing this question, we do not write on a
pristine page. In Addington v. Texas, 441 U.S. 418 (1979), the
Supreme Court differentiated between evidence that is "clear and
convincing" and evidence that is "clear, unequivocal, and
convincing." See
id. at 431-33. The Court asserted that "[t]he
term 'unequivocal,' taken by itself, means proof that admits of no
doubt, a burden approximating, if not exceeding, that used in
criminal cases."
Id. at 432. In furtherance of this point, the
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Court explained that it "has used the 'clear, unequivocal[,] and
convincing' standard of proof to protect particularly important
individual interests in various civil cases" and specifically
cited to cases involving deportation and removal as examples of
implicating these particularly important interests. Id. at 424.
The statute sometimes uses "clear and convincing
evidence," 8 U.S.C. § 1229a(c)(3) (burden of proof in removal
proceedings for deportable aliens), and in other sections "clear,
unequivocal[,] and convincing evidence," 8 U.S.C. § 1229a(b)(5)(A)
(burden of proof that written notice of removal hearing was
provided for in absentia order). "A well-established canon of
construction requires that courts give all language in a statute
operative effect." Morales v. Sociedad Española de Auxilio Mutuo
y Beneficencia, 524 F.3d 54, 59 (1st Cir. 2008). Thus, as used in
the statute, the word "unequivocal" likely adds something to the
government's burden.
It is true that because of Congress's silence on the
particular issue before us, we are ultimately interpreting not the
statute but, rather, a judicial standard mandated by Woodby. This
might ordinarily free us from the precepts of statutory
construction. See Mondaca-Vega v. Lynch, 808 F.3d 413, 420 (9th
Cir. 2015). But we must assume that Congress was aware of and
considered the "clear, unequivocal, and convincing" burden in
removal proceedings articulated in Woodby when it amended the INA.
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See Sepulveda v. United States, 330 F.3d 55, 64 (1st Cir. 2003)
("[I]n the ordinary case, 'Congress expects its statutes to be
read in conformity with [the Supreme] Court's precedents.'"
(quoting Clay v. United States, 537 U.S. 522, 527 (2003))). We
are, therefore, duty-bound to conclude that "clear and convincing
evidence" conveys a different meaning than "clear, unequivocal,
and convincing evidence." Simply put, the former requires a
lessened degree of proof.
The Sixth Circuit has come to a similar conclusion in
the context of inadmissible aliens. In Ward v. Holder, 733 F.3d
601 (6th Cir. 2013), that court held that "[t]he 'clear,
unequivocal, and convincing standard' is a more demanding degree
of proof than the 'clear and convincing' standard." See
id. at
605 (interpreting Addington,
441 U.S. at 432-33). We think that
the Ward court's reading of Addington is persuasive.
We recognize that the Ninth Circuit has come to a
different conclusion in Mondaca-Vega, 808 F.3d 413, as relied upon
by the agency in its decisions and the government in this appeal.
In our view, Mondaca-Vega rests on a misreading of Addington:
notwithstanding Addington's explicit recognition of the import of
the word "unequivocal," the Mondaca-Vega court cited Addington for
the proposition that "[t]he Supreme Court has repeatedly
emphasized that there are three burdens of proof." Mondaca-Vega,
808 F.3d at 422. It described these three burdens as limited to
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a preponderance of the evidence, clear and convincing evidence,
and beyond a reasonable doubt. See id. It proceeded to hold that
"[t]hree is enough" and to reject a separate "clear, unequivocal,
and convincing" standard.
Id. Like the dissent in that case, we
do not read the Supreme Court's precedent to "suggest[] that
standards of proof are limited to these three general levels."
Id. at 429 (Smith, J., dissenting in part). Instead, we take
Addington at face value and hold that the "clear, unequivocal, and
convincing" standard has its own meaning.
IV
The parties quarrel over whether the EARM Summaries,
without more, are sufficient and reliable proof of alienage under
the "clear, unequivocal, and convincing" standard. Because the
agency applied the wrong burden of proof and therefore did not
make a factual finding one way or the other, the agency is not
entitled to review under the deferential substantial evidence
standard on that issue. And indeed, as the parties acknowledged
at oral argument, the use of the EARM Summaries to show alienage
in immigration hearings is relatively new. We therefore take no
stance on whether DHS satisfied the "clear, unequivocal, and
convincing" standard by presenting the immigration court with EARM
Summaries. We leave that issue for resolution in future
proceedings.
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V
We need go no further. For the reasons stated above, we
grant the petition for judicial review, vacate the order complained
of, and remand to the BIA for further proceedings consistent with
this opinion.
So Ordered.
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