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Whenever a person applies for an immigration benefit, it is up to that person to prove his or her eligibility.

What many people don't know or realize is that the standard of proof could be critical in establishing eligibility. If the wrong standard of proof is applied by the USCIS, then a case that should have been approved could end up being wrongfully or improperly denied. By way of example, suppose that a passing grade at school is 51. A person ends up with a grade of 53, and thus should have passed the course. But imagine the instructor stating, "Although a passing grade is supposed to be 51, I am going to require people to get at least an 85 on their final exam." While this person had clearly passed the course based on the applicable grade standard because the instructor imposed a stricter standard, the student ends up failing the course. The same is true in connection with the standard of proof in proving eligibility for an immigration benefit. If the USCIS imposes a stricter standard of proof than required, a case that should have been approved ends up being denied. That is wrong! Basically, there are 3 different "standards of proof": 1. "Preponderance of evidence." This is the standard of proof for most immigration benefits and should be the standard applied by adjudicators. This basically means that the person has submitted evidence to demonstrate their claim of eligibility is "probably true" or "more likely than not". In other words, a 51% likelihood of eligibility. This is critical. Think about it: if a case has a 50/50 chance, all the person needs to do is to show that extra 1%, thereby establishing a 51% chance of eligibility. As stated in the USCIS's Adjudicator's Field Manual (AFM):" The standard of proof applied in most administrative immigration proceedings is the preponderance of the evidence standard.

Thus, even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is probably true or more likely than not, the applicant or petitioner has satisfied the "standard of proof" 2. "Clear and convincing evidence." This higher standard of proof is supposed to be used only in very limited situations (such as proving that a marriage is not "fixed", in cases where a person gets married while in removal proceedings, or obtained a green card through marriage, and within 5 years, is petitioning another, new spouse.) While the proof required may not necessarily be "conclusive" proof, it must create a "firm belief". The BIA defined it as: "That degree of proof though not necessarily conclusive, which will produce in the mind of the court a firm belief or conviction, or as that degree of proof which is more than a preponderance but less than beyond a reasonable doubt." 3. "Beyond a reasonable doubt." This is typically a standard applied in criminal cases, not in immigration cases, and thus should not be a required "standard of proof" to establish eligibility for an immigration benefit. It requires a showing of 90% or more of guilt. I have seen denials where the USCIS stated that the applicant did not prove eligibility by "clear and convincing" evidence, when the case only needed proof by a "preponderance of the evidence" which is merely just over a 50%. But if the USCIS has applied the wrong standard of proof, then it could be argued that the denial was improper and\or in error. If your case was denied, and you believe the wrong standard of proof was used, you may wish to seek the advice of an attorney, who could evaluate the case and determine if you proved eligibility by 51%.

Michael J. Gurfinkel has been an attorney for over 30 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. WEBSITE: Follow us on and Twitter @GurfinkelLaw TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465) Four offices to serve you: LOS ANGELES ¥ SAN FRANCISCO ¥ NEW YORK ¥ PHILIPPINES (This is for informational purposes only, and reflects the firm's opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)

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