Interim Decision #3113
MATTER OF E-M-
In Adjustment of Status Proceedings
Designated by Commissioner May 24, 1989
(1) An applicant seeking temporary resident status under section 245A of the
Immigration and Nationality Act, 8 U.S.C. § 1255a (Supp. IV 1986), has the burden
to prove his eligibility by a preponderance of the evidence.
(2) There is no catch-all definition of the term "preponderance of the evidence."
Whether an applicant has submitted sufficient evidence to meet his burden of proof
under section 245A of the Act will depend upon the factual circumstances of each
case. Generally, however, when something is to be established by a preponderance of
evidence it is sufficient that the proof only establish that it is probably true.
(3) An applicant who submitted an Arrival-Departure Record (Form 1-94) and his
passport to prove he entered the United States prior to 1982, affidavits from
acquaintances and employers to prove his continuous residence in the United States
since such a date, and an affidavit explaining why he was unable to submit other
documentation has established by a preponderance of the evidence that he has resided
continuously in the United States in an unlawful status since prior to January 1, 1982.
ON BEHALF OF APPLICANT: David Scheinfeld, Esquire
30 East 42 Street, Suite 401
New York, New York 10017
This is an appeal from a decision of the director, Eastern Regional
Processing Facility, finding the applicant ineligible for temporary
resident status under section 245A of the Immigration and Nationality
Act, 8 U.S.C. § 1255a (Supp. IV 1986). The appeal will be sustained
and the application for temporary resident status approved.
I. THE FACTS
The applicant is a divorced 44-year-old male native and citizen of
Jamaica. He has four children who are natives and residents of
Jamaica. On November 25, 1987, he filed an Application for Status as
a Temporary Resident (Form 1-687) under section 245A of the Act at
the Immigration and Naturalization Service legalization office in
Jersey City, New Jersey. The application was accompanied by the
necessary documentation as set forth in 8 C.F.R. § 245a.2(d) (1988).
The applicant also submitted his original Arrival-Departure Record
(Form I-94), photocopies of pages from his passport, and a number of
affidavits to support his claim to eligibility. His Form 1-94 indicates
that he was admitted to the United States on August 27, 1981, as a
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nonimmigrant visitor until September 21, 1981. There is no evidence
of any extensions to his period of admission. The Service's NonImmigrant Information System (NHS) does not indicate any departures or reentries of the applicant subsequent to August 27, 1981.
The applicant was interviewed by a Service examiner who recommended to the director that the application be approved. However, the
examiner suggested to the director that the applicant submit more
documentation because the applicant had submitted only affidavits.
In a letter to the applicant dated January 27, 1988,' the director
requested "proof of continuous residence in the U.S. from 1981 to the
present" and "historical evidence, other than affidavits" to prove
residence. In response to the request, the applicant submitted seven
affidavits, including an affidavit from the applicant setting forth
reasons why he was unable to produce any other proof to substantiate
his continuous residence.
On April 2, 1988, the director denied the application for temporary
resident status. In his decision, he pointed out that the application as
originally submitted "did not contain sufficient evidence to render it
approvable." The director then set forth the Service's regulations on
the burden of proof of applicants under section 245A of the Act, which
are at 8 C.F.R. § 245a.2(d)(5) (1988), and made the following relevant
findings. First, the director found that the 1(1 affidavits submitted by
witnesses as proof of the applicant's residence in the United States
"are not corroborated by other credible evidence." He noted that it
was reasonable to expect the applicant to submit evidence of continuous residence other than affidavits. Second, the director stated that the
applicant must prove eligibility by a preponderance of the evidence
but determined that to meet this standard the applicant "must provide
evidence of eligibility apart from [his] own testimony and that of
unsupported affidavits." Finally, the director concluded that the
applicant "failed to submit the required documentation." Consequently, he held that the evidence submitted was insufficient to support the
claim and therefore denied the application.
On appeal, the applicant, through counsel, asserts that the director
erred in his decision because the applicant met his burden of proof. He
has also submitted additional evidence on appeal consisting of 13
affidavits.
IL ANALYSIS
An applicant for temporary resident status under section 245A of
the Act has the burden to establish by "a preponderance of the
evidence that he or she has resided in the United States for the
requisite periods, is admissible to the United States , and is
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otherwise eligible for adjustment of status under this section." 8
C.F.R. § 245a.2(d)(5) (1988).
The applicant here does not dispute that the burden is upon him to
establish eligibility. Rather, he argues that he has met his burden by
establishing by a preponderance of the evidence his eligibility for
temporary resident status under section 245A of the Act.
A. WHETHER AN APPLICANT HAS PROVED HIS
ELIGIBILITY BY A PREPONDERANCE OF THE EVIDENCE
WILL GENERALLY DEPEND UPON THE FACTUAL
CIRCUMSTANCES OF EACH CASE
The issue in this appeal is whether the applicant has established his
eligibility under section 245A of the Act by a preponderance of the
evidence. The Service regulations provide an illustrative list of
documentary evidence that an applicant may submit to establish
eligibility. 8 C.F.R. § 245a.2(d) (1988). However, the term "preponderance of the evidence" is not explained. There are no talismanic
words to define this term. Whether an applicant has proved his
eligibility by a preponderance of the evidence will generally depend
upon the factual circumstances of each case. Nonetheless, certain
guiding considerations can be stated.
1. What Is Preponderance Of The Evidence?
The preponderance of the evidence standard may be best understood by contrasting it with other standards of proof.
First, preponderance of the evidence is not evidence that must
establish beyond a doubt that the applicant is eligible under section
245A of the Act. In other words, the director can still have doubts but,
nevertheless, the applicant can establish eligibility. Second, preponderance of the evidence is not the clear, unequivocal, and convincing
evidence applicable in deportation proceedings. See Woodby v. INS,
385 U.S. 276 (1966) (Service must prove by clear, unequivocal, and
convincing evidence that the facts alleged as grounds for deportation
are true). An alien does not have to prove by clear, unequivocal, and
convincing evidence that he has established eligibility under section
245A of the Act. Preponderance of the evidence requires a lesser
showing than these two standards. ,
How much of a showing is sufficient to establish eligibility by a
preponderance of the evidence will often turn upon the factual
circumstances of each case. There are no magic words or mathematical
lAs characterized by one court, "in American law a preponderance of the evidence is
rock bottom at the fact finding level of civil litigation." Charlton v. FTC,
543 F.2d 903,
907 (D.C. Cir. 1976) (footnote omitted).
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formulas that can describe a preponderance of the evidence so it can
be applied mechanically in every case. Nonetheless, when we consider
that the purpose of evidence is to ascertain the truth, then we can make
certain generalizations. For example, when something has to be proved
beyond a reasonable doubt, the proof must demonstrate that something must be almost certainly true. And when something has to be
proved by clear and convincing evidence, the proof must demonstrate
that it is highly probably true. But, when something is to be established
by a preponderance of the evidence it is sufficient that the proof only
establish that it is probably true. See generally E. Cleary, McCormick's
Handbook of the Law of Evidence § 339 (2d ed. 1972).
Truth is to be determined not by the quantity of evidence alone, but
by its quality. The regulations specifically state that the evidence will
be judged by its probative value and credibility. 8 C.F.R.
§ 245a.2(d)(6) (1988). Therefore, the application of the "preponderance of the evidence" standard may require the examination of each
piece of relevant evidence and a determination as to whether such
evidence, either by itself cm when viewed within the totality of the
-
evidence, establishes that something to be proved is probably true.
2. Evidence Likely To Be Found In Applications For Temporary
Resident Status Under Section 245A Of The Act
No two cases will ever contain identical evidence. However, the
evidence that is normally submitted by applicants under section 245A
of the Act can be grouped into three categories.
First is the application itself, Form 1-687. The Service regulations
state that "an applicant must provide evidence of eligibility apart from
his or her own testimony." 8 C.F.R. § 245a.2(d)(6) (1988). Thus, the
Form 1- 687 cannot by itself ever be sufficient to establish eligibility.
However, the application and the applicant's testimony is evidence to
be considered in determining eligibility. An applicant who knowingly
submits fraudulent documents or makes false statements is subject to
severe criminal penalties. Section 245A(c)(6) of the Act. Thus, there is
a built-in mechanism to discourage applicants from making false
statements and submitting fraudulent documentation.
The second category of evidence is the documentary evidence the
applicant may submit to support his application and to corroborate the
information of Form 1-687. This evidence may be in the form of
affidavits or in the format prescribed by the Service regulations. For
example, the regulations are very specific as to what a letter from an
employer should contain. S C.F.R. § 245a.2(d)(3)(i) (1988). Specifically, the letter should be signed by an employer under penalty of perjury
and "shall state the employer's willingness to come forward and give
testimony if requested." Id. Letters from employers that do not comply
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with this requirement do not have to be accorded as much evidentiary
weight as letters that otherwise comply.
Nonetheless, even absent compliance with this regulation, the letter
should be considered as a "relevant document" under 8 C.F.R.
§ 245a.2(d)(3)(iv)(L) (1 988). Affidavits that have been properly attested to under perjury of law may be given more weight than a simple
letter. However in determining the weight of an affidavit, it should be
examined first to determine upon what basis the affiant is making the
statement and whether the statement is internally consistent, plausible,
or even credible. Most important is whether the statement of the
affiant is consistent with the other evidence in the record.
The third category of evidence is the applicant's oral testimony.
Pursuant to the regulations, each applicant over 14 years of age must
be interviewed by a Service examiner at a legalization office ("LO"). 8
C.F.R. § 245a.2(j) (1988). The examiner then completes a worksheet
on Form 1-696 that b ecomes part of the record. In this form the
examiner makes his recommendation to the director.
There are two key pieces of evidence on Form 1-696. First, is the
LO's recommendation and then the basis for that recommendation.
These two pieces of evidence must complement each other. If the LO
recommends a denial, there should be a statement to indicate the basis
for that recommendation. Absent such a statement, very little or no
weight should generally be given to the recommendation. On the other
hand, if the LO recommends a grant and there is a basis for that
recommendation, then that recommendation should carry substantial
evidentiary weight, especially if the issue is one of credibility.
All of the foregoing factors should necessarily be taken into account
in reaching a particular decision. Moreover, the Service has suggested
a "balanced and flexible approach ... in evaluating an applicant's
testimony and the overall sufficiency and probative value of the
evidence he or she has provided to support his or her claim to
eligibility."2 In Matter of C , 19 IN Dec. 808 (Comm. 1988), we
-
noted also that Congress "expected 'INS to incorporate flexibility into
the standards for legalization eligibility."' Id. at 810 (citation omitted).
B. THE APPLICANT HAS ESTABLISHED BY A
PREPONDERANCE OF THE EVIDENCE ELIGIBILITY
UNDER SECTION 245A OF THE ACT
We now turn to consider the evidence in this case. The applicant
stated in his application that he last entered the United States on
2 Memorandnm of Richard E. Norton, Associate Commissioner of Examinations,
October 9, 1987, reprinted in 64 Interpreter Releases, No. 40, October 19, 1987, at 1171-
72.
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August 27, 1981, and that he has been self-employed as a handyman
since that time. He has lived at three different addresses since August
1981. With his application, he submitted a number of documents to
corroborate the information provided. These documents consist of
affidavits from acquaintances, a statement from a doctor, and a
statement from a pastor. Most of these documents are notarized, and
all the affiants stated their willingness to come forward and testify in
this matter if necessary.
The applicant also submitted the original Form 1-94 which shows a
stamp from the Service indicating the applicant was admitted as a
"B -2" visitor in New York City on August 27, 1981. This date of
admission also appears in the applicant's passport, photocopies of
which have been submitted by the applicant.
The Service examiner who interviewed the applicant recommended
that the application be granted. However, the examiner had sonic
doubt because he suspected fraud. The examiner further noted as
follows: "[The applicant] has only affidavits from 1981-1987 & a
doctor's statement to prove his residence. I suggest more documentation to prove residence.... " The examiner's recommendation is
puzzling when considered in the context of his other observations.
Nonetheless, the examiner had an opportunity to view the demeanor
of the applicant and to pursue whatever line of questioning was
necessary. To the extent that the examiner recommended a grant, such
evidence should be accorded much weight on the issue of the
applicant's credibility absent some contrary information in the record.
The director asked for additional information. Among other
documents, the applicant submitted a notarized statement by an
acquaintance who states he has known the applicant from 1981 until
the present in New Jersey. The applicant submitted a sworn affidavit
setting forth why he is unable to produce "any other proof to
substantiate" his continuous residence in the United States since 1981
to the present. The applicant explained that he lived with his relatives
and did not pay any rent.
On appeal, the applicant has submitted 13 additional affidavits. As
we have stated, the volume of evidence is not necessarily the decisive
factor in the search for the truth. The contents of the affidavits must be
assessed and the quality of the evidence determined. Here, all of the
affiants have explained the circumstances under which they came to
know the applicant. All of the affiants have stated their willingness to
come forward and testify if necessary.
Having reviewed the evidence in the record we find as follows.
While it is reasonable to expect an applicant who has been residing in
this country since prior to January 1, 1982, to provide some
documentation other than affidavits, the absence of contemporaneous
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documentation is not necessarily fatal to an applicant's claim to
eligibility. Although the Service regulations provide an illustrative list
of contemporaneous documents that an applicant can submit, the list
also permits the submission of affidavits and lajny other relevant
document." 8 C.F.R. § 245a.2(d)(3)(iv)(L) (1988). The legal conclusion of the director that the applicant cannot meet his burden of proof
by his "own testimony and that of unsupported affidavit" is inconsistent with the foregoing regulation.
In this case, the applicant's presence in the United States prior to
January 1982 has been established conclusively by official government
documents. His continuous presence in the United States since that
time has been documented by a number of affidavits ranging from
acquaintances to employers to a priest. All of the affiants have stated
their willingness to come forward and testify if necessary on behalf of
the applicant. The information submitted by these affiants corroborates the information provided by the applicant on Form 1-687,
namely, his continuous residence in the United States since August 27,
1981. In his decision the director did not challenge either the
credibility of the applicant and the affiants or the authenticity of the
documents.
We conclude that the applicant has probably been unlawfully
residing in the United States since prior to January 1, 1982. We base
this conclusion on the evidence submitted, particularly the original
Service Form 1-94 and the applicant's passport, indicating the
applicant entered the United States in 1981, and the affidavits
submitted by persons who are willing to testify in this matter, and by
the plausible explanation of the applicant as to why he is unable to
submit additional information.
For the foregoing reasons, we find that the applicant has established
his eligibility for temporary resident status under section 245A of the
Act by a preponderance of the evidence. 3
ORDER: The appeal is sustained. The application for temporary resident status is approved.
3 We also find that the applicant has met the other grounds of eligibility. The
applicant's status as a nonimmigrant expired prior to January 1, 1982, through the
passage of time. There are no known grounds of inadmissibility, and he does not appear
likely to become a public charge.
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