RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0230p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

LESLIE WARD,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

X

-

-

-

-

>

,

-

-

N

No. 12-3197

On Petition for Review of an Order of 

the Board of Immigration Appeals.

No. A073 231 332.

Decided and Filed: August 15, 2013 

Before: MARTIN, SUHRHEINRICH, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: George P. Mann, Maris J. Liss, GEORGE P. MANN AND ASSOCIATES,

Farmington Hills, Michigan, for Petitioner. Remi da Rocha-Afodu, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. Leslie Ward petitions this Court to

review the Board of Immigration Appeals’s order affirming the Immigration Judge’s

order that he be removed to the United Kingdom. The Board agreed with the

Immigration Judge that Ward had abandoned his lawful-permanent-resident status by

spending three years in the United Kingdom caring for his mother, who suffered from

dementia. 

This case poses the following legal question: what is the appropriate degree of

proof that the government must satisfy in a removal proceeding in which the government

1
No. 12-3197 Ward v. Holder Page 2

has charged a lawful permanent resident with inadmissibility? We hold that the

government must prove—by clear, unequivocal, and convincing evidence—the lawful

permanent resident’s inadmissibility. Because the Immigration Judge erred, as a matter

of law, both in applying the wrong degree of proof and in assigning the burden of proof

to the immigrant, Ward, instead of to the government, we GRANT the petition for

review, VACATE the Board of Immigration Appeal’s decision, and REMAND this case

for further proceedings consistent with this opinion. As a consequence, we also

VACATE the stay that we previously granted.

The government granted Leslie Ward, a fifty-year-old man from the United

Kingdom, lawful-permanent-resident status in 1995. Ward left the United States in 2003

to take care of his mother, who suffered from dementia, in the United Kingdom. Then,

in February 2006, Ward returned to the United States seeking admission as a returning

resident. Although not entirely clear from the record, it appears that when Ward arrived

at the Detroit, Michigan airport, he presented Customs and Border Patrol with an expired

green card; consequently, the government charged Ward as “subject to removal from the

United States” under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act,

as an immigrant who, “at the time of application for admission[,]” did not possess “a

valid unexpired immigrant visa, reentry permit, border crossing identification card, or

other valid entry document required by this Chapter . . . ” 8 U.S.C.A.

§ 1182(a)(7)(A)(i)(I). The government further asserted that Ward was inadmissible

because he had “abondoned [sic] [his] permanent resident status.”

Ward requested a hearing before an Immigration Judge on whether he was

removable based on his inadmissibility to the United States because he had abandoned

his lawful-permanent-resident status. At the hearing, the government called Ward to

testify in its case-in-chief, but it called no other witnesses. Ward testified in his behalf,

and his brother also testified. Both sides also introduced documentary evidence. In an

oral opinion issued the same day as the hearing, the Immigration Judge held that “the

charge of removability ha[d] been sustained by the requisite clear and convincing

evidence.” (emphasis added). In a short opinion, the Board adopted and affirmed the
No. 12-3197 Ward v. Holder Page 3

Immigration Judge’s order and added its own comments. Ward timely appealed.

Subsequently, we granted Ward’s motion to stay the Board’s removal order.

Where, as here, the Board adopts the Immigration Judge’s reasoning, but adds

its own comments, we review both the Immigration Judge’s decision and the Board’s

additional remarks. Karimijanaki v. Holder, 579 F.3d 710, 714 (6th Cir. 2009) (citing

Gilaj v. Gonzales, 408 F.3d 275, 282–83 (6th Cir. 2005)). 

We review de novo the Board’s conclusions of law. Marku v. Ashcroft, 380 F.3d

982, 986 (6th Cir. 2004) (citing Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir. 2004)) (rest

of string citation omitted). 

We begin by clarifying (hopefully) some rather confusing terminology that we

will apply throughout this opinion. Before 1996, the name of the process by which the

government expelled a non-citizen from the United States depended on where the

government caught the person. If the government caught the person at the border (or in

an airport), the government put the person into “exclusion” proceedings and charged the

person under one of the “inadmissibility” grounds enumerated in the Act’s section

212(a). 8 U.S.C.A. § 1182(a). But if the government caught the person in the United

States’s interior, the government put the person into “deportation” proceedings and

charged the person under one of the “deportability” grounds enumerated in the Act’s

section 237(a). 8 U.S.C.A. § 1227(a). Then, Congress passed the Illegal Immigration

Reform and Responsibility Act of 1996, which combined the terms “deportation” and

“exclusion” into the term “removal.” See Pub. L. No. 104-208, § 304, 110 Stat. 3009

(1996). After 1996, then, the proceeding in which the government sought to expel a

non-citizen from the United States—whether the person was apprehended at the border

or in the interior—was called a removal proceeding, not a “deportation” or “exclusion”

proceeding. But Congress did not change the categories under which the government

may charge a person with being present unlawfully in the United States. The Act, after

1996, still refers to two categories of grounds for removability: the government may

either charge an immigrant as being “inadmissible,” under the Act’s section 212(a)
No. 12-3197 Ward v. Holder Page 4

(8 U.S.C.A. § 1182(a)), or as being “deportable” under the Act’s section 237(a)

(8 U.S.C.A. § 1227(a)). 

Also in 1996, Congress changed the degree of proof for removal proceedings in

which the government charged an immigrant with one of the deportability grounds under

the Act’s section 237(a). Before 1996, the Act had not mentioned the correct degree of

proof that the government had to satisfy in deportation proceedings; the question made

its way to the Supreme Court, which held that the degree of proof that the government

had to satisfy to deport someone was “by clear, unequivocal, and convincing evidence.”

Woodby v. I.N.S., 385 U.S. 276, 277 (1966). 

But in 1996, Congress added section 240 to the Act. See Illegal Immigration

Reform and Responsiblity Act, Pub. L. No. 104-208, § 304, 110 Stat. 3009 (1996). In

adding this section, Congress lowered the degree of proof that the government had to

satisfy in cases in which it sought to remove someone based on a deportability ground.

Specifically, section 240(c)(3)(A) provided “in cases of deportable aliens”—that is, in

cases in which the government sought to deport someone based on one of the

deportability grounds in the Act’s section 237(a)—that the government “has the burden

of establishing by clear and convincing evidence that, in the case of an alien who has

been admitted to the United States, the alien is deportable.” 8 U.S.C.A. § 1229a(c)(3).

But Congress did not change the degree of proof that the government must satisfy

in removal cases in which the government charges a lawful permanent resident with one

of the inadmissibility grounds. The “question of what degree of proof is required” in a

proceeding “is the kind of question which has traditionally been left to the judiciary to

resolve[.]” Woodby, 385 U.S. at 284. Our Circuit and others have resolved this

question. Where the government seeks to remove a lawful permanent resident based on

an inadmissibility ground, and specifically claims that the person has abandoned his or

her lawful-permanent-resident status, it must prove by clear, unequivocal, and

convincing evidence that the lawful permanent resident is inadmissible.

For example, in Hana v. Gonzalez, 400 F.3d 472 (6th Cir. 2005), the first

published case in our Circuit to address the fact pattern of a lawful permanent resident
No. 12-3197 Ward v. Holder Page 5

charged as removable based on a ground of inadmissibility—of supposed abandonment

of lawful-permanent-resident status—we held that the government’s degree of proof was

“‘to establish by clear, unequivocal, and convincing evidence’” that the lawful

permanent resident’s status had changed. Hana, 400 F.3d at 475–76 (quoting Singh v.

Reno, 113 F.3d 1512, 1514 (9th Cir. 1997) (citing Woodby, 385 U.S. at 277)). 

In addition to the Ninth Circuit and our Circuit, the First, and the Fifth Circuits

have faced the same fact pattern and have held that the government must prove

inadmissibility by clear, unequivocal, and convincing evidence. See Katebi v. Ashcroft,

396 F.3d 463, 466 (1st Cir. 2005) (holding that the government “has the burden of

proving that he is not admissible . . . by clear, unequivocal and convincing evidence.”);

accord Moin v. Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003) (holding that the government

may refute an alien’s intent to return “by clear, unequivocal, and convincing evidence.”).

The distinction between, on the one hand—clear, unequivocal, and

convincing evidence—and, on the other—clear and unequivocal evidence—may seem

inconsequential. One might think that deleting “unequivocal” does not make any

difference. Indeed, a prior panel of our court said as much. See Pickering v. Gonzales,

465 F.3d 263, 268 n.3 (6th Cir. 2006) (acknowledging the 1996 “amendment” of section

240(c)(3)(A) (8 U.S.C. § 1229a(c)(3)), but noting that “the amendment ha[d] only a

minimal effect on the standard, if any, because evidence that is ‘equivocal’ could not be

considered ‘clear and convincing.’”).

But the Supreme Court has said otherwise. In Addington v. Texas, 441 U.S. 418,

419–20 (1966), the Court considered “what [degree] of proof is required . . . in a civil

proceeding brought under state law to commit an individual involuntarily for an

indefinite period to a state mental hospital.” The Court concluded that a preponderanceof-the-evidence degree of proof fell “short of meeting the demands of due process[,]”

but also concluded that the beyond-a-reasonable-doubt degree of proof was not required.

Id. at 431. It observed that some states employed the standard of “clear and convincing”

evidence, whereas some states used “clear, unequivocal and convincing” evidence. Id.

at 431–32. And it also noted that it had applied the “clear, unequivocal, and convincing”
No. 12-3197 Ward v. Holder Page 6

standard in Woodby v. I.N.S., 385 U.S. 276, 285 (1966), and in Schneiderman v. United

States, 320 U.S. 118, 125 (1943). Id. at 432.

The Court recognized the difference between the two degrees of proof, and the

difference that the word “unequivocal” makes, declaring that “the term ‘unequivocal,’

taken by itself, means proof that admits of no doubt, a burden approximating, if not

exceeding, that used in criminal cases.” Id. (footnote omitted). Addington recognized

the difference by holding that, in a commitment hearing before a jury, a state trial court

must employ the “clear and convincing” standard to meet due process guarantees, but

that the Texas Supreme Court could require the higher standard of “clear, unequivocal,

and convincing” evidence in such a proceeding. Id. at 433. So, the omission of

“unequivocal” makes a difference. The “clear, unequivocal, and convincing standard”

is a more demanding degree of proof than the “clear and convincing” standard.

And the Board of Immigration Appeals has also recognized that removing

“unequivocal” creates a lesser degree of proof: “[t]he clear and convincing standard

imposes a lower burden than the clear, unequivocal, and convincing standard . . . because

it does not require that the evidence be unequivocal or of such a quality as to dispel all

doubt.” Matter of Patel, 19 I. & N. Dec. 774, 783 (1988) (citing Addington, 441 U.S.

at 432; United States v. Mastrangelo, 561 F. Supp. 1114, 1120 (E.D.N.Y. 1983)). With

this as our background, we now turn to the central issue in this case: whether the

Immigration Judge assigned the correct degree of proof to the correct party. 

The Immigration Judge’s and the Board’s opinions both stated correctly that the

government bore the burden of proof in this proceeding. The government charged Ward

under the Act’s section 212(a), which enumerates the instances in which aliens are

“ineligible to be admitted to the United States.” 8 U.S.C.A. § 1182(a). Specifically, the

government asserted that Ward was inadmissible because he had an expired green card;

therefore, the government charged Ward as “subject to removal from the United States”

under the Act’s section 212(a)(7)(A)(i)(I), as an immigrant who, “at the time of

application for admission[,]” did not possess “a valid unexpired immigrant visa, reentry
No. 12-3197 Ward v. Holder Page 7

permit, border crossing identification card, or other valid entry document required by

this Act. . . ” 8 U.S.C.A. § 1182(a)(7)(A)(i)(I).

Normally, in a removal proceeding in which the government is charging that an

immigrant is inadmissible, the immigrant must carry the burden of proving that he or she

is “clearly and beyond doubt entitled to be admitted and is not inadmissible under

[8 U.S.C.A. § 1182[.]” 8 U.S.C.A. § 1229a(c)(2)(A); 8 U.S.C.A. § 1361. But, where

a returning alien has a colorable claim to returning-resident-alien status, then the

government bears the burden of proving that the alien is not eligible for admission to the

United States. Hana, 400 F.3d at 475 (quoting Singh, 113 F.3d at 1514) (quotation

marks omitted).

Here, the record shows—and the parties agree—that Ward had a colorable claim

to returning-resident-alien status because the government granted him lawful permanent

residency in 1995 and he in fact possessed a (presumably expired) green card.

Therefore, both the Board and the Immigration Judge correctly stated in their opinions

that the government bore the burden of proof.

Nevertheless, a close reading of the Immigration Judge’s opinion shows that she

actually placed the burden of proof on Ward. For example, in reviewing the evidence

the Immigration Judge stated that a certain fact “undercut [Ward’s] ability to

demonstrate that his time back in England should be deemed a temporary visit abroad.”

(emphasis added). This statement, that Ward had the “ability to demonstrate” that his

time abroad should be deemed a temporary visit abroad, indicates that she assigned the

burden of proof to Ward—instead of to the government. Elsewhere in her opinion, the

Immigration Judge stated that a certain fact “further undercut[ ] [Ward’s] argument that

this trip was for a relatively short period of time.” (emphasis added). Again, this

language indicates that Ward—not the government—had to argue that his trip abroad

was for a short period. Lastly, the Immigration Judge concluded that “[a]t best, on this

record, [Ward] has demonstrated that he had an intent to perhaps ultimately come back

to the United States, but he has not demonstrated that it was his intent to return within

a relatively short amount of time.” (emphases added). Again, this suggests that the
No. 12-3197 Ward v. Holder Page 8

Immigration Judge believed Ward was the party that had to demonstrate—or prove—that

his visit abroad was temporary. But the government, not Ward, had to bear this burden.

The Immigration Judge also erred by assigning an incorrect degree of proof to

the government. The Immigration Judge stated that the government must establish, “by

clear and convincing evidence[,]” that Ward had abandoned his lawful permanent

residency. In support for holding that the burden was clear and convincing evidence, she

cited the Act’s section 240(c)(3). 8 U.S.C.A. § 1229a(c)(3)(A).

But, as discussed above, section 240(c)(3), entitled “burden on service in cases

of deportable aliens[,]” (emphasis added) specifies the degree of proof that the

government must satisfy in cases in which the government has alleged that an already

admitted immigrant is removable based on one of the deportability grounds enumerated

in section 237. 8 U.S.C.A. § 1227. Section 240(c)(3) provides that the government “has

the burden of establishing by clear and convincing evidence that, in the case of an alien

who has been admitted to the United States, the alien is deportable.” 8 U.S.C.A.

§ 1229a(c)(3)(A) (emphasis added). This section of the statute, then, applies only to

aliens who have been admitted, and whom the government is attempting to remove based

on a deportability ground.

The Immigration Judge should not have applied section 240(c)(3) to Ward,

however, because the government charged him as removable based on one of the

inadmissibility grounds listed in section 212(a). 8 U.S.C.A. § 1182(a). As already

mentioned, the government charged Ward as an arriving alien “seeking admission as a

returning resident” and alleged that Ward was removable because he was

inadmissible—because he did not possess “a valid unexpired immigrant visa, reentry

permit, border crossing identification card, or other valid entry document . . .”

8 U.S.C.A. § 1182(a)(7)(A)(i)(I). (emphases added). Because Ward had not been

admitted, section 240(c)(3) could not have applied to him, because that section applies

only to an alien who has been admitted and whom the government is seeking to remove

based on a ground of deportability (not inadmissibility). Therefore, the Immigration

Judge erred as a matter of law in applying section 240(c)(3) to hold that the standard of
No. 12-3197 Ward v. Holder Page 9

proof was “clear and convincing evidence.” The Immigration Judge could not have

relied upon another section of the Act, because the Act nowhere specifies the standard

of proof in cases in which the government has alleged that a lawful permanent resident

is inadmissible because he or she has abandoned his or her lawful permanent resident

status. Instead, the applicable degree of proof—“‘to establish by clear, unequivocal, and

convincing evidence’” that Ward’s status had changed—comes from case law; in our

Circuit, Hana, 400 F.3d at 475–76 (quoting Singh, 113 F.3d at 1514) (citing Woodby,

385 U.S. at 277)).

We have not always followed Hana. In two cases decided after Hana, we

incorrectly stated that the government’s degree of proof, in cases in which the

government sought to remove a lawful permanent resident based on inadmissibility

grounds, was “clear and convincing” instead of “clear, unequivocal, and convincing”

evidence.

In the first reported case, Karimijanaki v. Holder, 579 F.3d 710, 712 (6th Cir.

2009), we faced the same fact pattern as in Hana: the government charged a lawful

permanent resident as inadmissible—and thus removable—because she supposedly

abandoned her lawful permanent resident status. We held that the government’s degree

of proof was to establish inadmissibility “‘by clear and convincing evidence.’”

Karimijanaki, 579 F.3d at 715 (citing 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a);

Pickering, 465 F.3d at 269 n. 3).

But we erred in Karimijanaki, because, as discussed above, 8 U.S.C. section

1229a(c)(3)(A), also known as the Act’s section 240(c)(3)(A), applies only to removal

proceedings in which the government alleges that an already admitted immigrant is

nevertheless removable based on one of the deportability grounds, not on one of the

inadmissibility grounds. Furthermore, the citation in Karimijanaki to footnote three in

Pickering does not support the proposition that the degree of proving inadmissibility in

a removal proceeding is by clear-and-convincing evidence because that footnote

discussed Congress’ codification of 8 U.S.C. section 1229a(c)(3)(A)’s degree of proof.

As mentioned, 8 U.S.C. section 1229a(c)(3), by its very terms, does not apply to a
No. 12-3197 Ward v. Holder Page 10

removal proceeding in which the government has charged that a lawful permanent

resident is removable because he or she has allegedly abandoned his or her lawful

permanent resident status. Moreover, 8 C.F.R. section 1240.8(a) assigns the degree of

proof to the government as “by clear and convincing evidence” in cases in which the

immigrant has been “charged with deportability[,]” not inadmissibility. (emphasis

added).

We again erred in 2012, when we cited Karimijanaki to declare that “the

government must prove that a [lawful permanent resident] abandoned her status by clear

and convincing evidence.” Lateef v. Holder, 683 F.3d 275, 279 (6th Cir. 2012) (citing

Karimijanaki, 579 F.3d at 715; 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a)).

And, “when a later decision of this court conflicts with one of our prior published

decisions, we are still bound by the holding of the earlier case.” Darrah v. City of Oak

Park, 255 F.3d 301, 310 (6th Cir. 2001) (citing Sowards v. Loudon Cnty., Tenn.,

203 F.3d 426, 431 n. 1 (6th Cir. 2000); Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 180 F.3d 758, 765 (6th Cir. 1999), rev’d on other grounds, 531 U.S. 288

(2001)). We therefore decline to follow Karimijanaki and Lateef because they conflict

with Hana’s holding that the government’s degree of proof is “by clear, unequivocal,

and convincing evidence.” Neither Karimijanaki nor Lateef could have overruled

Hana’s holding because “[a] panel of this Court cannot overrule the decision of another

panel. The prior decision remains controlling authority unless an inconsistent decision

of the United States Supreme Court requires modification of the decision or this Court

sitting en banc overrules the prior decision.” Salmi v. Sec’y of Health and Human

Servs., 774 F.2d 685, 689 (6th Cir. 1985) (citing Timmreck v. United States, 577 F.2d

372, 376 n.15 (6th Cir. 1978), rev’d on other grounds, 441 U.S. 780 (1979), on remand,

600 F.2d 1228 (6th Cir. 1979)). Therefore, in keeping with Hana, our earliest published

case to address the fact pattern of abandonment of lawful-permanent-resident status, and

the other Circuits that have decided this issue, we hold that the government must

establish by clear, unequivocal, and convincing evidence that the lawful permanent

resident is inadmissible because he or she has abandoned his or her status.
No. 12-3197 Ward v. Holder Page 11

Because the Immigration Judge used the wrong degree of proof and allocated it

to the wrong party, we must remand this case to the Board in accordance with the

Supreme Court’s opinion in I.N.S. v. Orlando Ventura, 537 U.S. 12 (2002) (per curiam).

In Orlando Ventura, the Board determined that an immigrant failed to qualify for

political asylum, but the Ninth Circuit reversed the Board. Id. at 13. The Ninth Circuit’s

opinion reversing the Board went on “to consider an alternative argument that the

[g]overnment had made before the Immigration Judge,” and, instead of remanding the

case, “evaluated the [g]overnment’s claim itself.” Id. at 13–14. The Ninth Circuit

decided the matter in the immigrant’s favor, “holding that the evidence in the record

failed” to meet the appropriate legal standard to disqualify the immigrant from getting

political asylum. Id. at 14.

After granting certiorari, the Court agreed with the government that the Ninth

Circuit “exceeded its legal authority when it decided the . . . matter on its own.” Id.

Rather, the Court said, the Ninth Circuit should have “remanded the case to the [Board].”

Id. The Court explained that “[a] court of appeals ‘is not generally empowered to

conduct a de novo inquiry into the matter being reviewed and to reach its own

conclusions based on such an inquiry.’” Id. at 16 (quoting Florida Power & Light Co.

v. Lorion, 470 U.S. 729, 744 (1985)). Rather, the Court said, “‘the proper course, except

in rare circumstances, is to remand to the agency for additional investigation or

explanation.’” Id. (quoting Florida Power & Light Co., 470 U.S. at 744).

Here, too, the proper course is for us to remand this case for the Board to

consider whether Ward abandoned his lawful permanent resident status—but the Board

must allocate the correct degree of proof to the government. This “matter requires

determining the facts.” Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per curiam). We

may not make this factual inquiry de novo. See Matadin v. Mukasey, 546 F.3d 85, 93

(2d Cir. 2008) (vacating and remanding a case in which the Immigration Judge applied

the wrong burden of proof in a proceeding in which the government alleged that a lawful

permanent resident had abandoned her status). Therefore, the petition for review is

GRANTED; the Board’s decision is VACATED; and the case is REMANDED for
No. 12-3197 Ward v. Holder Page 12

further proceedings consistent with this opinion. The stay previously granted by this

court is VACATED as moot.