a10. A panoramic analysis of the burden of proof and evidence standards in immigration and litigatio
A panoramic analysis of the burden of proof and evidence standards in American immigration and litigation: also discussing the traceability boundary of EB-5 funding sources
When involved in US legal litigation, administrative hearings, or immigration applications, the "Burden of Proof" and "Standard of Proof" are the two core pillars that determine the success or failure of a case. Many applicants or litigants often confuse these two concepts or do not know how to respond when faced with difficulties from administrative officials, thus falling into a passive position. This article will systematically break down the evidentiary principles in US litigation and administrative procedures, and take the most difficult "Source of Funds (SOF)" in EB-5 investment immigration as an example to explore the practical application and boundaries of evidentiary standards.
1、 The principle of proof in ordinary litigation and administrative cases in the United States
In the US legal system, clarifying "who will prove" and "to what extent" is a prerequisite for initiating all legal proceedings.
1. Attribution of burden of proof
·Civil cases: follow the basic principle of "He who asserts must prove". The plaintiff sues and makes a claim, bearing the initial burden of proof. But in the litigation process, if the defendant raises a "affirmative defense" (such as the statute of limitations has expired, the contract has been fulfilled, justifiable defense, etc.), the defendant bears the burden of proof for the defense claim.
·Criminal cases: The burden of proof is absolutely on the prosecution (Government/Prosecution). The defendant is presumed innocent by default and enjoys the implied right granted by the Constitution, without the need to prove their innocence, and may even choose to remain completely silent in court.
·Administrative cases also follow the principle of "whoever asserts, sues, and provides evidence". If the applicant applies for a certain welfare or license from the government, the burden of proof lies with the applicant; If administrative agencies (such as the Environmental Protection Bureau or the Ministry of Labor) impose penalties on enterprises or individuals, the burden of proof lies with the government.
·Immigration cases: belong to administrative cases. The United States Immigration Act (INA) belongs to the category of administrative law, and both the United States Citizenship and Immigration Services (USCIS) and the Immigration Tribunal (EOIR) are administrative agencies or administrative courts, therefore fully applying the evidentiary framework of administrative cases in terms of procedures.
2. Three major evidentiary standards
According to the severity of the nature of the case, American law has established three main evidentiary standards, ranging from low to high:
·Prepondence of Evidence: Refers to proving that a fact is "highly probable to be true", meaning that its likelihood of occurrence is greater than 50%. This applies to the vast majority of civil cases and most administrative and immigration welfare applications.
·Clear and Convincing Evidence: requires evidence to be highly credible, creating a firm belief (usually understood as 70% to 80% certainty) for the judge. Applicable to civil or administrative cases involving significant individual rights, such as deprivation of guardianship, fraud charges, and civil revocation of nationality.
·Beyond a Reasonable Doubt: The highest legal standard that requires almost absolute certainty (about 95% or more) and does not allow any reasonable doubt. Only applicable to criminal cases.
2、 Evidence segmentation in immigration cases: not uniform
Although immigration cases belong to administrative cases, there are significant differences in the burden of proof and evidentiary standards for different types of applications. The general principle is: 'Whoever applies, shall provide evidence; if the government wants to deprive rights and interests, the government shall provide evidence.'.
Case Type
The party responsible for providing evidence
Applicable evidentiary standards
Remarks
Green card, work visa/identity application
(I-140, I-485, H-1B, etc.)
Applicant/Beneficiary
Advantage Evidence Standard
(Preponderance)
Although the legal threshold for exemption applications (such as I-601/I-601A) is high, the standard of evidence is still dominant evidence.
Asylum cases
(Asylum)
Applicant
Advantage Evidence Standard
(But with special tolerance)
Prove that 'past persecution' applies advantageous evidence; But proving the rationality of fear only requires a 10% probability of persecution.
Expulsion/deportation cases
(Removal Proceedings)
Government (DHS)
Clear and persuasive evidence
(Clear and Convincing)
For foreign nationals who have already entered the country (especially green card holders). If the entry is intercepted at the border, the responsibility lies with the applicant.
Cancel/Revoke Green Card
(Rescission of LPR Status)
Government (DHS)
Clear and persuasive evidence
(Clear and Convincing)
The government must prove that the green card should not have been initially approved.
Cancel/revoke citizenship rights
(Denaturalization)
government
Civil: Clear and irrefutable evidence
Criminal: beyond reasonable doubt
Lawsuits must be filed through federal district courts, and the immigration agency itself has no authority to directly revoke citizenship.
3、 In depth analysis: the "traceability boundary" of the legitimate source of EB-5 funds
In EB-5 investment immigration, proving the source of funds (SOF) is the most rigorous step in the review process. How many years does the immigration bureau have the authority to trace the original accumulation of the funding chain?
1. Request a 7-year retrospective: legal and reasonable
The EB-5 Reform and Integrity Act (RIA) implemented in 2022 specifies that investors must submit personal and business tax returns (Tax Returns) for the past 7 years when submitting their applications.
Therefore, requiring a 7-year retrospective of tax records, bank statements, and transfer records is a mandatory legal requirement and completely reasonable.
2. Request to trace back 20 years or even longer: depending on the nature of the funding chain
For over 20 years of ultra long span traceability, it cannot be generalized:
·Reasonable situation (chain tracking principle):
The core logic of EB-5 is to 'track down to the first pot of gold'. If your funds originated more than 20 years ago, even if they were only recently realized, the immigration department has the right to trace them back.
Real estate realization: purchased for $100000 in 2005 (21 years ago) and sold for $1 million in 2025. The immigration office not only looks at the sale price of the house, but also requires proof of the source of the $100000 that was purchased 21 years ago. This is reasonable in legal logic.
Long term enterprise: The funding comes from the accumulated dividends of the company that has been in operation for 25 years. It is also reasonable for the immigration department to require proof of initial investment and early tax receipts from the company to exclude the possibility of money laundering.
·Unreasonable situation (abuse of discretion):
If the applicant's funding source logic is simple and clear (such as high salary accumulation in the past 5 years and perfect matching of tax receipts), and the immigration officer insists on providing "every transaction from more than 20 years ago when they first started working" without any reasonable doubt, this is an unreasonable requirement.
According to the classic precedent of Matter of Chawathe established by the Supreme Court and Administrative Appeals Office (AAO), applicants only need to prove that the facts are "more likely to be true (>50%)". If, due to objective physical limitations such as the passage of time or the lawful destruction of historical archives by banks or tax authorities, immigration officers continue to insist, it constitutes an "abuse of discretion" in legal terms.
4、 Strategies for Dealing with Immigration Officials Abusing the Burden of Proof or Standards
In practical operation, immigration officers often illegally raise the standard of evidence. If the applicant encounters such "difficulties", they can seek relief through the following progressive legal channels:
1. Positive defense during RFE/NOID stage:
In the response letter, the lawyer cited the USCIS Policy Manual and the Matter of Chawathe precedent, directly stating: "The applicant only needs to prove that the facts are highly likely to be true (superior evidence). The immigration officer's imposition of a higher burden of proof constitutes an error in the application of law
2. Provide official proof that is objectively unavailable:
If the historical archives have been destroyed, an official letter of explanation from the bank or tax bureau should be issued proactively (proving the longest retention period of the archives) to lock in "objective force majeure". At the same time, submit secondary evidence such as sworn statements from former colleagues or partners, current news reports, or business registration as substitutes.
3. filing an administrative appeal to AAO or BIA:
If the application is unfortunately rejected, an I-290B application can be submitted for appeal. The core reason for the appeal should be defined as: the immigration department applied incorrect legal standards in the factual determination.
4. Federal Court Litigation (APA Litigation):
After exhausting administrative remedies, the applicant may file a lawsuit with the United States District Court, accusing the immigration agency of violating the Administrative Procedure Act (APA), stating that its refusal to make a decision is "arbitrary, arbitrary, or an abuse of discretion". Under the scrutiny of federal judges, it is not uncommon for immigration agencies to be ruled against for illegally raising the standard of evidence.
This article is provided by the law firm of Zhang Daqin in Los Angeles (www.visatopia. com).
