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NA 240(c)(3)(A); 8 C.F.R. 1240.8(a)(burden of proof to show by clear and convincing evidence that person is deportable is on ICE)

8 C.F.R. 1240.8(d)(burden of proof on the respondent to show eligibility for relief)

Shepard v. U.S., 125 S. Ct. 1254 (2005); Matter of Texeira, 21 I&N Dec. 316 (BIA 1996)(police reports are not part of the record of conviction)

INA 240(c)(3)(B); 8 C.F.R. 1003.41 (what is part of the record of conviction)

Cruz-Garza v. BICE, 396 F.3d 1125 (10th Cir. 2005)(burden on ICE to show the conviction was vacated for immigration purposes only when ambiguout record of vacatur)

Matter of Cota, 23 I&N Dec. 849 (BIA 2005)(sentence can be reduced for immigration purposes only, even though conviction can't be vacated for immigration reasons only)

Matter of Luna, A74-317-521 (BIA Index Dec. 2000) (ICE has burden of showing returning LPR is seeking admission under INA 101(a)(13)(C) because he or she has been convicted of an offense described in INA 212(a)(2)) (I-213 record of inadmissible/deportable alien was insufficient evidence without bringing INS officer in to testify)

The Real ID Act changed section INA §240(c) - adds new section making it INA Sec. 240(c)(4)

Effective dates:
New credibility and corroboration stds apply to all applications filed on or after May 11, 2005. (judicial review standards effective May 11, 2005- See www.ailf.org practice advisories)

PRE-REAL ID CREDIBILITY CASES (asylum mostly)

• See Sylla v. INS, 388 F.3d 924 (6th Cir. 2004)(holding adverse credibility findings must be based on issues that go to heart of claim, not irrelevant consistencies), Rodriguez-Galicia v. Gonzales, 422 F.3d 529 (7th Cir. 2005)(adverse credibility finding must be based on specific, cogent reasons and bear a legitimate nexus to the finding), also Uribe v. U.S. AG, 2005 U.S. App. LEXIS 7956 (11th Cir. 2005), Gao v. Ashcroft, 299 F.3d 266 (3d Cir. 2002)(holding that adverse credibility findings must be based on substantial evidence, not speculation and conjecture) Secaida-Rosales v. INS, 331 F.3d 297 (2d Cir. 2003)(holding that where the principal source of evidence is applicant's testimony, credibility determinations based on appropriate factors is critical), Kaur v. Gonzales, 418 F.3d 1061 (9th Cir. 2005) (holding that inconsistencies should not be viewed in isolation, but rather considered in light of all the evidence presented), Guan v. U.S.A.G. 2005 U.S. App. LEXIS 1840, (5th Cir. 2005) (credibility determinations cannot be arbitrary)
• Totality of the circumstances is an existing standard that courts and agencies apply in a variety of contexts. See e.g. U.S. v. Arvizu, 534 US 266 (2002) (determining whether a vehicle stop was reasonable) - criminal case but it is illustrative of one "totality of the circumstances" test

• Matter of S-M-J, 21 I&N Dec. 722 (BIA 1997) - See Conference Committee Report for Real ID (Public law 109-72)

Non-asylum 9th Circuit cases: Vera-Villegas v. INS, 330 F.3d 1222 (9th Cir. 2003). See also Lopez-Alvarado v. Ashcroft, 381 F.3d 847 (9th Cir. 2004)

RESOURCES:

• "Another Chance: Forensic Psychological Assessment of Recidivism and Dangerousness in Immigration Adjudications," Rosenberg, Lory D. and F. Barton Evans III, Ph.D, 8 Bender's Immigration Bulletin 768, May 1, 2003.)
• Discretionary Decision Analysis -- based on AILF Practice Advisory by Mary Kenney, Federal Court Jurisdiction Over Discretionary Decisions After REAL ID (Sept. 7, 2005) - available on www.ailf.org
• Conference committee report for Real ID - House Report 109-072 - MAKING EMERGENCY SUPPLEMENTAL APPROPRIATIONS FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2005, AND FOR OTHER PURPOSES-available at http://thomas.loc.gov/cgi-bin/cpquery/R?cp109:FLD010:@1(hr072)
• Division B - Real ID text available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_public_laws&docid=f:publ013.109