The US Court of Appeals for the Fourth Circuit has held that a previously admitted non-citizen seeking adjustment of status during removal proceedings must prove admissibility by a preponderance of the evidence, rejecting the government’s higher “clearly and beyond doubt” standard.
Sintia Dines Nivar Santana, a Dominican citizen, entered the United States on a visitor visa and later applied to become a lawful permanent resident. An immigration judge found her inadmissible for allegedly making a false claim of US citizenship on an employment-eligibility form. Because the record did not establish who checked the disputed box, the judge concluded that she had not proved her admissibility clearly and beyond doubt. The Board of Immigration Appeals affirmed.
The Fourth Circuit had previously denied review after deferring to the Board’s interpretation under Chevron. The Supreme Court vacated that decision and returned the case for reconsideration after Loper Bright ended the practice of Chevron deference on questions of statutory interpretation.
Reading the Immigration and Nationality Act independently, the unanimous panel said a person who was inspected and admitted, and who later seeks adjustment as relief from removal, is not an “applicant for admission” merely because admissibility is one element of adjustment. The higher burden applies to people seeking admission at the border or present without having been admitted. The general preponderance standard for relief from removal therefore governs Santana’s application.
The court granted the petition for review and remanded to the immigration authorities. It did not decide whether Santana is admissible or entitled to adjustment; those issues remain for further proceedings under the lower proof standard.
Official Fourth Circuit opinion: Nivar Santana v Blanche, No. 22-2114
