Returning LPR burden of proof

In re Valero-Pena, A099-120-766, 2010 WL 2224531 (BIA May 20, 2010) (unpublished). 

The respondent, an LPR, was charged with drug trafficking but the charges were ultimately dismissed.  Later, he traveled abroad and was denied entry and paroled into the U.S.  He was charged with removability under INA s 212(a)(2)(C) as a noncitizen who the Attorney General has reason to believe is or was a drug trafficker.  The Immigration Judge sustained the removal charge and the LPR appealed.

On appeal, the BIA remanded.  The BIA was concerned that the Immigration Judge did not place the burden of proof on the DHS.  Because the respondent had a colorable claim to returning resident status, the burden was on the DHS to establish removability by clear, unequivocal, and convincing evidence (the concurring opinion took issue with the "unequivocal" portion of the standard).  The BIA was not convinced that the Immigration Judge applied this "exacting standard" or that the judge properly weighed the evidence in light of this standard.