Leslie Ward v. Eric Holder, Jr.

Filing

OPINION and JUDGMENT filed: The petition for review is GRANTED, the Board of Immigration Appeals' decision is VACATED, and the case is REMANDED. The stay previously granted by this court is VACATED AS MOOT. Boyce F. Martin, Jr. (AUTHORING), Richard F. Suhrheinrich, and Julia Smith Gibbons, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0230p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 12-3197
v.
>
,
ERIC H. HOLDER, JR., Attorney General,
Respondent. N
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A073 231 332.

LESLIE WARD,

Petitioner,

Decided and Filed: August 15, 2013
Before: MARTIN, SUHRHEINRICH, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: George P. Mann, Maris J. Liss, GEORGE P. MANN AND ASSOCIATES,
Farmington Hills, Michigan, for Petitioner. Remi da Rocha-Afodu, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Leslie Ward petitions this Court to
review the Board of Immigration Appeals’s order affirming the Immigration Judge’s
order that he be removed to the United Kingdom.

The Board agreed with the

Immigration Judge that Ward had abandoned his lawful-permanent-resident status by
spending three years in the United Kingdom caring for his mother, who suffered from
dementia.
This case poses the following legal question: what is the appropriate degree of
proof that the government must satisfy in a removal proceeding in which the government
1

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has charged a lawful permanent resident with inadmissibility? We hold that the
government must prove—by clear, unequivocal, and convincing evidence—the lawful
permanent resident’s inadmissibility. Because the Immigration Judge erred, as a matter
of law, both in applying the wrong degree of proof and in assigning the burden of proof
to the immigrant, Ward, instead of to the government, we GRANT the petition for
review, VACATE the Board of Immigration Appeal’s decision, and REMAND this case
for further proceedings consistent with this opinion. As a consequence, we also
VACATE the stay that we previously granted.
The government granted Leslie Ward, a fifty-year-old man from the United
Kingdom, lawful-permanent-resident status in 1995. Ward left the United States in 2003
to take care of his mother, who suffered from dementia, in the United Kingdom. Then,
in February 2006, Ward returned to the United States seeking admission as a returning
resident. Although not entirely clear from the record, it appears that when Ward arrived
at the Detroit, Michigan airport, he presented Customs and Border Patrol with an expired
green card; consequently, the government charged Ward as “subject to removal from the
United States” under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act,
as an immigrant who, “at the time of application for admission[,]” did not possess “a
valid unexpired immigrant visa, reentry permit, border crossing identification card, or
other valid entry document required by this Chapter . . . ”

8 U.S.C.A.

§ 1182(a)(7)(A)(i)(I). The government further asserted that Ward was inadmissible
because he had “abondoned [sic] [his] permanent resident status.”
Ward requested a hearing before an Immigration Judge on whether he was
removable based on his inadmissibility to the United States because he had abandoned
his lawful-permanent-resident status. At the hearing, the government called Ward to
testify in its case-in-chief, but it called no other witnesses. Ward testified in his behalf,
and his brother also testified. Both sides also introduced documentary evidence. In an
oral opinion issued the same day as the hearing, the Immigration Judge held that “the
charge of removability ha[d] been sustained by the requisite clear and convincing
evidence.” (emphasis added). In a short opinion, the Board adopted and affirmed the

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Immigration Judge’s order and added its own comments. Ward timely appealed.
Subsequently, we granted Ward’s motion to stay the Board’s removal order.
Where, as here, the Board adopts the Immigration Judge’s reasoning, but adds
its own comments, we review both the Immigration Judge’s decision and the Board’s
additional remarks. Karimijanaki v. Holder, 579 F.3d 710, 714 (6th Cir. 2009) (citing
Gilaj v. Gonzales, 408 F.3d 275, 282–83 (6th Cir. 2005)).
We review de novo the Board’s conclusions of law. Marku v. Ashcroft, 380 F.3d
982, 986 (6th Cir. 2004) (citing Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir. 2004)) (rest
of string citation omitted).
We begin by clarifying (hopefully) some rather confusing terminology that we
will apply throughout this opinion. Before 1996, the name of the process by which the
government expelled a non-citizen from the United States depended on where the
government caught the person. If the government caught the person at the border (or in
an airport), the government put the person into “exclusion” proceedings and charged the
person under one of the “inadmissibility” grounds enumerated in the Act’s section
212(a). 8 U.S.C.A. § 1182(a). But if the government caught the person in the United
States’s interior, the government put the person into “deportation” proceedings and
charged the person under one of the “deportability” grounds enumerated in the Act’s
section 237(a). 8 U.S.C.A. § 1227(a). Then, Congress passed the Illegal Immigration
Reform and Responsibility Act of 1996, which combined the terms “deportation” and
“exclusion” into the term “removal.” See Pub. L. No. 104-208, § 304, 110 Stat. 3009
(1996). After 1996, then, the proceeding in which the government sought to expel a
non-citizen from the United States—whether the person was apprehended at the border
or in the interior—was called a removal proceeding, not a “deportation” or “exclusion”
proceeding. But Congress did not change the categories under which the government
may charge a person with being present unlawfully in the United States. The Act, after
1996, still refers to two categories of grounds for removability: the government may
either charge an immigrant as being “inadmissible,” under the Act’s section 212(a)

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(8 U.S.C.A. § 1182(a)), or as being “deportable” under the Act’s section 237(a)
(8 U.S.C.A. § 1227(a)).
Also in 1996, Congress changed the degree of proof for removal proceedings in
which the government charged an immigrant with one of the deportability grounds under
the Act’s section 237(a). Before 1996, the Act had not mentioned the correct degree of
proof that the government had to satisfy in deportation proceedings; the question made
its way to the Supreme Court, which held that the degree of proof that the government
had to satisfy to deport someone was “by clear, unequivocal, and convincing evidence.”
Woodby v. I.N.S., 385 U.S. 276, 277 (1966).
But in 1996, Congress added section 240 to the Act. See Illegal Immigration
Reform and Responsiblity Act, Pub. L. No. 104-208, § 304, 110 Stat. 3009 (1996). In
adding this section, Congress lowered the degree of proof that the government had to
satisfy in cases in which it sought to remove someone based on a deportability ground.
Specifically, section 240(c)(3)(A) provided “in cases of deportable aliens”—that is, in
cases in which the government sought to deport someone based on one of the
deportability grounds in the Act’s section 237(a)—that 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.” 8 U.S.C.A. § 1229a(c)(3).
But Congress did not change the degree of proof that the government must satisfy
in removal cases in which the government charges a lawful permanent resident with one
of the inadmissibility grounds. The “question of what degree of proof is required” in a
proceeding “is the kind of question which has traditionally been left to the judiciary to
resolve[.]” Woodby, 385 U.S. at 284. Our Circuit and others have resolved this
question. Where the government seeks to remove a lawful permanent resident based on
an inadmissibility ground, and specifically claims that the person has abandoned his or
her lawful-permanent-resident status, it must prove by clear, unequivocal, and
convincing evidence that the lawful permanent resident is inadmissible.
For example, in Hana v. Gonzalez, 400 F.3d 472 (6th Cir. 2005), the first
published case in our Circuit to address the fact pattern of a lawful permanent resident

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charged as removable based on a ground of inadmissibility—of supposed abandonment
of lawful-permanent-resident status—we held that the government’s degree of proof was
“‘to establish by clear, unequivocal, and convincing evidence’” that the lawful
permanent resident’s status had changed. Hana, 400 F.3d at 475–76 (quoting Singh v.
Reno, 113 F.3d 1512, 1514 (9th Cir. 1997) (citing Woodby, 385 U.S. at 277)).
In addition to the Ninth Circuit and our Circuit, the First, and the Fifth Circuits
have faced the same fact pattern and have held that the government must prove
inadmissibility by clear, unequivocal, and convincing evidence. See Katebi v. Ashcroft,
396 F.3d 463, 466 (1st Cir. 2005) (holding that the government “has the burden of
proving that he is not admissible . . . by clear, unequivocal and convincing evidence.”);
accord Moin v. Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003) (holding that the government
may refute an alien’s intent to return “by clear, unequivocal, and convincing evidence.”).
The distinction between, on the one hand—clear, unequivocal, and
convincing evidence—and, on the other—clear and unequivocal evidence—may seem
inconsequential. One might think that deleting “unequivocal” does not make any
difference. Indeed, a prior panel of our court said as much. See Pickering v. Gonzales,
465 F.3d 263, 268 n.3 (6th Cir. 2006) (acknowledging the 1996 “amendment” of section
240(c)(3)(A) (8 U.S.C. § 1229a(c)(3)), but noting that “the amendment ha[d] only a
minimal effect on the standard, if any, because evidence that is ‘equivocal’ could not be
considered ‘clear and convincing.’”).
But the Supreme Court has said otherwise. In Addington v. Texas, 441 U.S. 418,
419–20 (1966), the Court considered “what [degree] of proof is required . . . in a civil
proceeding brought under state law to commit an individual involuntarily for an
indefinite period to a state mental hospital.” The Court concluded that a preponderanceof-the-evidence degree of proof fell “short of meeting the demands of due process[,]”
but also concluded that the beyond-a-reasonable-doubt degree of proof was not required.
Id. at 431. It observed that some states employed the standard of “clear and convincing”
evidence, whereas some states used “clear, unequivocal and convincing” evidence. Id.
at 431–32. And it also noted that it had applied the “clear, unequivocal, and convincing”

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standard in Woodby v. I.N.S., 385 U.S. 276, 285 (1966), and in Schneiderman v. United
States, 320 U.S. 118, 125 (1943). Id. at 432.
The Court recognized the difference between the two degrees of proof, and the
difference that the word “unequivocal” makes, declaring that “the term ‘unequivocal,’
taken by itself, means proof that admits of no doubt, a burden approximating, if not
exceeding, that used in criminal cases.” Id. (footnote omitted). Addington recognized
the difference by holding that, in a commitment hearing before a jury, a state trial court
must employ the “clear and convincing” standard to meet due process guarantees, but
that the Texas Supreme Court could require the higher standard of “clear, unequivocal,
and convincing” evidence in such a proceeding. Id. at 433. So, the omission of
“unequivocal” makes a difference. The “clear, unequivocal, and convincing standard”
is a more demanding degree of proof than the “clear and convincing” standard.
And the Board of Immigration Appeals has also recognized that removing
“unequivocal” creates a lesser degree of proof: “[t]he clear and convincing standard
imposes a lower burden than the clear, unequivocal, and convincing standard . . . because
it does not require that the evidence be unequivocal or of such a quality as to dispel all
doubt.” Matter of Patel, 19 I. & N. Dec. 774, 783 (1988) (citing Addington, 441 U.S.
at 432; United States v. Mastrangelo, 561 F. Supp. 1114, 1120 (E.D.N.Y. 1983)). With
this as our background, we now turn to the central issue in this case: whether the
Immigration Judge assigned the correct degree of proof to the correct party.
The Immigration Judge’s and the Board’s opinions both stated correctly that the
government bore the burden of proof in this proceeding. The government charged Ward
under the Act’s section 212(a), which enumerates the instances in which aliens are
“ineligible to be admitted to the United States.” 8 U.S.C.A. § 1182(a). Specifically, the
government asserted that Ward was inadmissible because he had an expired green card;
therefore, the government charged Ward as “subject to removal from the United States”
under the Act’s section 212(a)(7)(A)(i)(I), as an immigrant who, “at the time of
application for admission[,]” did not possess “a valid unexpired immigrant visa, reentry

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permit, border crossing identification card, or other valid entry document required by
this Act. . . ” 8 U.S.C.A. § 1182(a)(7)(A)(i)(I).
Normally, in a removal proceeding in which the government is charging that an
immigrant is inadmissible, the immigrant must carry the burden of proving that he or she
is “clearly and beyond doubt entitled to be admitted and is not inadmissible under
[8 U.S.C.A. § 1182[.]” 8 U.S.C.A. § 1229a(c)(2)(A); 8 U.S.C.A. § 1361. But, where
a returning alien has a colorable claim to returning-resident-alien status, then the
government bears the burden of proving that the alien is not eligible for admission to the
United States. Hana, 400 F.3d at 475 (quoting Singh, 113 F.3d at 1514) (quotation
marks omitted).
Here, the record shows—and the parties agree—that Ward had a colorable claim
to returning-resident-alien status because the government granted him lawful permanent
residency in 1995 and he in fact possessed a (presumably expired) green card.
Therefore, both the Board and the Immigration Judge correctly stated in their opinions
that the government bore the burden of proof.
Nevertheless, a close reading of the Immigration Judge’s opinion shows that she
actually placed the burden of proof on Ward. For example, in reviewing the evidence
the Immigration Judge stated that a certain fact “undercut [Ward’s] ability to
demonstrate that his time back in England should be deemed a temporary visit abroad.”
(emphasis added). This statement, that Ward had the “ability to demonstrate” that his
time abroad should be deemed a temporary visit abroad, indicates that she assigned the
burden of proof to Ward—instead of to the government. Elsewhere in her opinion, the
Immigration Judge stated that a certain fact “further undercut[ ] [Ward’s] argument that
this trip was for a relatively short period of time.” (emphasis added). Again, this
language indicates that Ward—not the government—had to argue that his trip abroad
was for a short period. Lastly, the Immigration Judge concluded that “[a]t best, on this
record, [Ward] has demonstrated that he had an intent to perhaps ultimately come back
to the United States, but he has not demonstrated that it was his intent to return within
a relatively short amount of time.” (emphases added). Again, this suggests that the

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Immigration Judge believed Ward was the party that had to demonstrate—or prove—that
his visit abroad was temporary. But the government, not Ward, had to bear this burden.
The Immigration Judge also erred by assigning an incorrect degree of proof to
the government. The Immigration Judge stated that the government must establish, “by
clear and convincing evidence[,]” that Ward had abandoned his lawful permanent
residency. In support for holding that the burden was clear and convincing evidence, she
cited the Act’s section 240(c)(3). 8 U.S.C.A. § 1229a(c)(3)(A).
But, as discussed above, section 240(c)(3), entitled “burden on service in cases
of deportable aliens[,]” (emphasis added) specifies the degree of proof that the
government must satisfy in cases in which the government has alleged that an already
admitted immigrant is removable based on one of the deportability grounds enumerated
in section 237. 8 U.S.C.A. § 1227. Section 240(c)(3) provides that 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.” 8 U.S.C.A.
§ 1229a(c)(3)(A) (emphasis added). This section of the statute, then, applies only to
aliens who have been admitted, and whom the government is attempting to remove based
on a deportability ground.
The Immigration Judge should not have applied section 240(c)(3) to Ward,
however, because the government charged him as removable based on one of the
inadmissibility grounds listed in section 212(a). 8 U.S.C.A. § 1182(a). As already
mentioned, the government charged Ward as an arriving alien “seeking admission as a
returning resident” and alleged that Ward was removable because he was
inadmissible—because he did not possess “a valid unexpired immigrant visa, reentry
permit, border crossing identification card, or other valid entry document . . .”
8 U.S.C.A. § 1182(a)(7)(A)(i)(I). (emphases added). Because Ward had not been
admitted, section 240(c)(3) could not have applied to him, because that section applies
only to an alien who has been admitted and whom the government is seeking to remove
based on a ground of deportability (not inadmissibility). Therefore, the Immigration
Judge erred as a matter of law in applying section 240(c)(3) to hold that the standard of

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proof was “clear and convincing evidence.” The Immigration Judge could not have
relied upon another section of the Act, because the Act nowhere specifies the standard
of proof in cases in which the government has alleged that a lawful permanent resident
is inadmissible because he or she has abandoned his or her lawful permanent resident
status. Instead, the applicable degree of proof—“‘to establish by clear, unequivocal, and
convincing evidence’” that Ward’s status had changed—comes from case law; in our
Circuit, Hana, 400 F.3d at 475–76 (quoting Singh, 113 F.3d at 1514) (citing Woodby,
385 U.S. at 277)).
We have not always followed Hana. In two cases decided after Hana, we
incorrectly stated that the government’s degree of proof, in cases in which the
government sought to remove a lawful permanent resident based on inadmissibility
grounds, was “clear and convincing” instead of “clear, unequivocal, and convincing”
evidence.
In the first reported case, Karimijanaki v. Holder, 579 F.3d 710, 712 (6th Cir.
2009), we faced the same fact pattern as in Hana: the government charged a lawful
permanent resident as inadmissible—and thus removable—because she supposedly
abandoned her lawful permanent resident status. We held that the government’s degree
of proof was to establish inadmissibility “‘by clear and convincing evidence.’”
Karimijanaki, 579 F.3d at 715 (citing 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a);
Pickering, 465 F.3d at 269 n. 3).
But we erred in Karimijanaki, because, as discussed above, 8 U.S.C. section
1229a(c)(3)(A), also known as the Act’s section 240(c)(3)(A), applies only to removal
proceedings in which the government alleges that an already admitted immigrant is
nevertheless removable based on one of the deportability grounds, not on one of the
inadmissibility grounds. Furthermore, the citation in Karimijanaki to footnote three in
Pickering does not support the proposition that the degree of proving inadmissibility in
a removal proceeding is by clear-and-convincing evidence because that footnote
discussed Congress’ codification of 8 U.S.C. section 1229a(c)(3)(A)’s degree of proof.
As mentioned, 8 U.S.C. section 1229a(c)(3), by its very terms, does not apply to a

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removal proceeding in which the government has charged that a lawful permanent
resident is removable because he or she has allegedly abandoned his or her lawful
permanent resident status. Moreover, 8 C.F.R. section 1240.8(a) assigns the degree of
proof to the government as “by clear and convincing evidence” in cases in which the
immigrant has been “charged with deportability[,]” not inadmissibility. (emphasis
added).
We again erred in 2012, when we cited Karimijanaki to declare that “the
government must prove that a [lawful permanent resident] abandoned her status by clear
and convincing evidence.” Lateef v. Holder, 683 F.3d 275, 279 (6th Cir. 2012) (citing
Karimijanaki, 579 F.3d at 715; 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a)).
And, “when a later decision of this court conflicts with one of our prior published
decisions, we are still bound by the holding of the earlier case.” Darrah v. City of Oak
Park, 255 F.3d 301, 310 (6th Cir. 2001) (citing Sowards v. Loudon Cnty., Tenn.,
203 F.3d 426, 431 n. 1 (6th Cir. 2000); Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass’n, 180 F.3d 758, 765 (6th Cir. 1999), rev’d on other grounds, 531 U.S. 288
(2001)). We therefore decline to follow Karimijanaki and Lateef because they conflict
with Hana’s holding that the government’s degree of proof is “by clear, unequivocal,
and convincing evidence.” Neither Karimijanaki nor Lateef could have overruled
Hana’s holding because “[a] panel of this Court cannot overrule the decision of another
panel. The prior decision remains controlling authority unless an inconsistent decision
of the United States Supreme Court requires modification of the decision or this Court
sitting en banc overrules the prior decision.” Salmi v. Sec’y of Health and Human
Servs., 774 F.2d 685, 689 (6th Cir. 1985) (citing Timmreck v. United States, 577 F.2d
372, 376 n.15 (6th Cir. 1978), rev’d on other grounds, 441 U.S. 780 (1979), on remand,
600 F.2d 1228 (6th Cir. 1979)). Therefore, in keeping with Hana, our earliest published
case to address the fact pattern of abandonment of lawful-permanent-resident status, and
the other Circuits that have decided this issue, we hold that the government must
establish by clear, unequivocal, and convincing evidence that the lawful permanent
resident is inadmissible because he or she has abandoned his or her status.

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Because the Immigration Judge used the wrong degree of proof and allocated it
to the wrong party, we must remand this case to the Board in accordance with the
Supreme Court’s opinion in I.N.S. v. Orlando Ventura, 537 U.S. 12 (2002) (per curiam).
In Orlando Ventura, the Board determined that an immigrant failed to qualify for
political asylum, but the Ninth Circuit reversed the Board. Id. at 13. The Ninth Circuit’s
opinion reversing the Board went on “to consider an alternative argument that the
[g]overnment had made before the Immigration Judge,” and, instead of remanding the
case, “evaluated the [g]overnment’s claim itself.” Id. at 13–14. The Ninth Circuit
decided the matter in the immigrant’s favor, “holding that the evidence in the record
failed” to meet the appropriate legal standard to disqualify the immigrant from getting
political asylum. Id. at 14.
After granting certiorari, the Court agreed with the government that the Ninth
Circuit “exceeded its legal authority when it decided the . . . matter on its own.” Id.
Rather, the Court said, the Ninth Circuit should have “remanded the case to the [Board].”
Id. The Court explained that “[a] court of appeals ‘is not generally empowered to
conduct a de novo inquiry into the matter being reviewed and to reach its own
conclusions based on such an inquiry.’” Id. at 16 (quoting Florida Power & Light Co.
v. Lorion, 470 U.S. 729, 744 (1985)). Rather, the Court said, “‘the proper course, except
in rare circumstances, is to remand to the agency for additional investigation or
explanation.’” Id. (quoting Florida Power & Light Co., 470 U.S. at 744).
Here, too, the proper course is for us to remand this case for the Board to
consider whether Ward abandoned his lawful permanent resident status—but the Board
must allocate the correct degree of proof to the government. This “matter requires
determining the facts.” Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per curiam). We
may not make this factual inquiry de novo. See Matadin v. Mukasey, 546 F.3d 85, 93
(2d Cir. 2008) (vacating and remanding a case in which the Immigration Judge applied
the wrong burden of proof in a proceeding in which the government alleged that a lawful
permanent resident had abandoned her status). Therefore, the petition for review is
GRANTED; the Board’s decision is VACATED; and the case is REMANDED for

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further proceedings consistent with this opinion. The stay previously granted by this
court is VACATED as moot.