The Burden of Proof for Revoking Spousal Petitions
AILA Law Journal article author Nathan J. Chan reflects on writing his piece for the Fall 2020 edition titled “How the Bona Fides of a Marriage for an Approved Spousal Petition Can Depend on Whether the Burden of Proof in Revocation Proceedings Under INA §205 Is on USCIS or the Petitioner.” AILA Editorial Director Danielle Polen posed some questions about the process, the issue, and what the author learned along the way.
What about this issue felt timely and important to you?
The case for correcting this issue is overwhelming in all aspects—logically, legally, and otherwise. Yet because this error of law became entrenched in petition-revocation jurisprudence decades ago, it has affected, is affecting, and could continue to affect the life paths of actual people through no fault of their own.
What key points do you want readers to take away from the article?
For petitioners and beneficiaries, I highly recommend that you hire an immigration attorney to represent you. Immigration law is one of the most complex fields to navigate on your own. Without the critical eye that comes from formal legal studies, you would probably think that a simple claim like this—that the petitioner has the burden of proof in revocation proceedings—is perfectly reasonable and logical, when in fact it makes little sense from a legal point of view.
As for immigration attorneys, do what I’m sure you have always been doing: Question everything the U.S. Government says—whether legal or factual claims—since in my experience they often misstate/misapply law/facts to support their desired/predetermined outcome. Don’t just accept their assertions at face value.
Did anything surprise you as you researched and wrote about this issue?
It was really encouraging that the deeper I researched into the issue, the more support I found for my position. Aside from the handful of authorities illusorily supporting the position of U.S. Citizenship and Immigration Services (USCIS)—8 C.F.R. § 103.2(b)(1) and the nine precedent cases analyzed in the article—every other authority pointed my direction. Even the reasoning in three of the Board of Immigration Appeals (BIA) precedent cases directly contradicted the incorrect point of law asserted within those same decisions!
How do you think someone might use the article?
My greatest hope is that immigration attorneys will take the legal principles I compiled and disseminate them to administrative/judicial decisionmakers to become more informed about this issue, so that one day the relevant BIA and Ninth Circuit precedents will be overruled in favor of the correct point of law.
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