Interim Decision #3113 

MATTER OF E-MIn Adjustment of Status Proceedings 

Designated by Commissioner May 24, 1989 

(1) An applicant seeking temporary resident status under section 245A of the 

Immigration and Nationality Act, 8 U.S.C. § 1255a (Supp. IV 1986), has the burden 

to prove his eligibility by a preponderance of the evidence. 

(2) There is no catch-all definition of the term "preponderance of the evidence." 

Whether an applicant has submitted sufficient evidence to meet his burden of proof 

under section 245A of the Act will depend upon the factual circumstances of each 

case. Generally, however, when something is to be established by a preponderance of 

evidence it is sufficient that the proof only establish that it is probably true. 

(3) An applicant who submitted an Arrival-Departure Record (Form 1-94) and his 

passport to prove he entered the United States prior to 1982, affidavits from 

acquaintances and employers to prove his continuous residence in the United States 

since such a date, and an affidavit explaining why he was unable to submit other 

documentation has established by a preponderance of the evidence that he has resided 

continuously in the United States in an unlawful status since prior to January 1, 1982. 

ON BEHALF OF APPLICANT: David Scheinfeld, Esquire 

30 East 42 Street, Suite 401 

New York, New York 10017 

This is an appeal from a decision of the director, Eastern Regional 

Processing Facility, finding the applicant ineligible for temporary 

resident status under section 245A of the Immigration and Nationality 

Act, 8 U.S.C. § 1255a (Supp. IV 1986). The appeal will be sustained 

and the application for temporary resident status approved. 

I. THE FACTS 

The applicant is a divorced 44-year-old male native and citizen of 

Jamaica. He has four children who are natives and residents of 

Jamaica. On November 25, 1987, he filed an Application for Status as 

a Temporary Resident (Form 1-687) under section 245A of the Act at 

the Immigration and Naturalization Service legalization office in 

Jersey City, New Jersey. The application was accompanied by the 

necessary documentation as set forth in 8 C.F.R. § 245a.2(d) (1988). 

The applicant also submitted his original Arrival-Departure Record 

(Form I-94), photocopies of pages from his passport, and a number of 

affidavits to support his claim to eligibility. His Form 1-94 indicates 

that he was admitted to the United States on August 27, 1981, as a 

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nonimmigrant visitor until September 21, 1981. There is no evidence 

of any extensions to his period of admission. The Service's NonImmigrant Information System (NHS) does not indicate any departures or reentries of the applicant subsequent to August 27, 1981. 

The applicant was interviewed by a Service examiner who recommended to the director that the application be approved. However, the 

examiner suggested to the director that the applicant submit more 

documentation because the applicant had submitted only affidavits. 

In a letter to the applicant dated January 27, 1988,' the director 

requested "proof of continuous residence in the U.S. from 1981 to the 

present" and "historical evidence, other than affidavits" to prove 

residence. In response to the request, the applicant submitted seven 

affidavits, including an affidavit from the applicant setting forth 

reasons why he was unable to produce any other proof to substantiate 

his continuous residence. 

On April 2, 1988, the director denied the application for temporary 

resident status. In his decision, he pointed out that the application as 

originally submitted "did not contain sufficient evidence to render it 

approvable." The director then set forth the Service's regulations on 

the burden of proof of applicants under section 245A of the Act, which 

are at 8 C.F.R. § 245a.2(d)(5) (1988), and made the following relevant 

findings. First, the director found that the 1(1 affidavits submitted by 

witnesses as proof of the applicant's residence in the United States 

"are not corroborated by other credible evidence." He noted that it 

was reasonable to expect the applicant to submit evidence of continuous residence other than affidavits. Second, the director stated that the 

applicant must prove eligibility by a preponderance of the evidence 

but determined that to meet this standard the applicant "must provide 

evidence of eligibility apart from [his] own testimony and that of 

unsupported affidavits." Finally, the director concluded that the 

applicant "failed to submit the required documentation." Consequently, he held that the evidence submitted was insufficient to support the 

claim and therefore denied the application. 

On appeal, the applicant, through counsel, asserts that the director 

erred in his decision because the applicant met his burden of proof. He 

has also submitted additional evidence on appeal consisting of 13 

affidavits. 

IL ANALYSIS 

An applicant for temporary resident status under section 245A of 

the Act has the burden to establish by "a preponderance of the 

evidence that he or she has resided in the United States for the 

requisite periods, is admissible to the United States , and is 

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Interim Decision #3113 

otherwise eligible for adjustment of status under this section." 8 

C.F.R. § 245a.2(d)(5) (1988). 

The applicant here does not dispute that the burden is upon him to 

establish eligibility. Rather, he argues that he has met his burden by 

establishing by a preponderance of the evidence his eligibility for 

temporary resident status under section 245A of the Act. 

A. WHETHER AN APPLICANT HAS PROVED HIS 

ELIGIBILITY BY A PREPONDERANCE OF THE EVIDENCE 

WILL GENERALLY DEPEND UPON THE FACTUAL 

CIRCUMSTANCES OF EACH CASE 

The issue in this appeal is whether the applicant has established his 

eligibility under section 245A of the Act by a preponderance of the 

evidence. The Service regulations provide an illustrative list of 

documentary evidence that an applicant may submit to establish 

eligibility. 8 C.F.R. § 245a.2(d) (1988). However, the term "preponderance of the evidence" is not explained. There are no talismanic 

words to define this term. Whether an applicant has proved his 

eligibility by a preponderance of the evidence will generally depend 

upon the factual circumstances of each case. Nonetheless, certain 

guiding considerations can be stated. 

1. What Is Preponderance Of The Evidence? 

The preponderance of the evidence standard may be best understood by contrasting it with other standards of proof. 

First, preponderance of the evidence is not evidence that must 

establish beyond a doubt that the applicant is eligible under section 

245A of the Act. In other words, the director can still have doubts but, 

nevertheless, the applicant can establish eligibility. Second, preponderance of the evidence is not the clear, unequivocal, and convincing 

evidence applicable in deportation proceedings. See Woodby v. INS, 

385 U.S. 276 (1966) (Service must prove by clear, unequivocal, and 

convincing evidence that the facts alleged as grounds for deportation 

are true). An alien does not have to prove by clear, unequivocal, and 

convincing evidence that he has established eligibility under section 

245A of the Act. Preponderance of the evidence requires a lesser 

showing than these two standards. , 

How much of a showing is sufficient to establish eligibility by a 

preponderance of the evidence will often turn upon the factual 

circumstances of each case. There are no magic words or mathematical 

lAs characterized by one court, "in American law a preponderance of the evidence is 

rock bottom at the fact finding level of civil litigation." Charlton v. FTC, 543 F.2d 903, 

907 (D.C. Cir. 1976) (footnote omitted). 

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formulas that can describe a preponderance of the evidence so it can 

be applied mechanically in every case. Nonetheless, when we consider 

that the purpose of evidence is to ascertain the truth, then we can make 

certain generalizations. For example, when something has to be proved 

beyond a reasonable doubt, the proof must demonstrate that something must be almost certainly true. And when something has to be 

proved by clear and convincing evidence, the proof must demonstrate 

that it is highly probably true. But, when something is to be established 

by a preponderance of the evidence it is sufficient that the proof only 

establish that it is probably true. See generally E. Cleary, McCormick's 

Handbook of the Law of Evidence § 339 (2d ed. 1972). 

Truth is to be determined not by the quantity of evidence alone, but 

by its quality. The regulations specifically state that the evidence will 

be judged by its probative value and credibility. 8 C.F.R. 

§ 245a.2(d)(6) (1988). Therefore, the application of the "preponderance of the evidence" standard may require the examination of each 

piece of relevant evidence and a determination as to whether such 

evidence, either by itself cm- when viewed within the totality of the 

evidence, establishes that something to be proved is probably true. 

2. Evidence Likely To Be Found In Applications For Temporary 

Resident Status Under Section 245A Of The Act 

No two cases will ever contain identical evidence. However, the 

evidence that is normally submitted by applicants under section 245A 

of the Act can be grouped into three categories. 

First is the application itself, Form 1-687. The Service regulations 

state that "an applicant must provide evidence of eligibility apart from 

his or her own testimony." 8 C.F.R. § 245a.2(d)(6) (1988). Thus, the 

Form 1-687 cannot by itself ever be sufficient to establish eligibility. 

However, the application and the applicant's testimony is evidence to 

be considered in determining eligibility. An applicant who knowingly 

submits fraudulent documents or makes false statements is subject to 

severe criminal penalties. Section 245A(c)(6) of the Act. Thus, there is 

a built-in mechanism to discourage applicants from making false 

statements and submitting fraudulent documentation. 

The second category of evidence is the documentary evidence the 

applicant may submit to support his application and to corroborate the 

information of Form 1-687. This evidence may be in the form of 

affidavits or in the format prescribed by the Service regulations. For 

example, the regulations are very specific as to what a letter from an 

employer should contain. S C.F.R. § 245a.2(d)(3)(i) (1988). Specifically, the letter should be signed by an employer under penalty of perjury 

and "shall state the employer's willingness to come forward and give 

testimony if requested." Id. Letters from employers that do not comply 

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with this requirement do not have to be accorded as much evidentiary 

weight as letters that otherwise comply. 

Nonetheless, even absent compliance with this regulation, the letter 

should be considered as a "relevant document" under 8 C.F.R. 

§ 245a.2(d)(3)(iv)(L) (1 988). Affidavits that have been properly attested to under perjury of law may be given more weight than a simple 

letter. However in determining the weight of an affidavit, it should be 

examined first to determine upon what basis the affiant is making the 

statement and whether the statement is internally consistent, plausible, 

or even credible. Most important is whether the statement of the 

affiant is consistent with the other evidence in the record. 

The third category of evidence is the applicant's oral testimony. 

Pursuant to the regulations, each applicant over 14 years of age must 

be interviewed by a Service examiner at a legalization office ("LO"). 8 

C.F.R. § 245a.2(j) (1988). The examiner then completes a worksheet 

on Form 1-696 that b ecomes part of the record. In this form the 

examiner makes his recommendation to the director. 

There are two key pieces of evidence on Form 1-696. First, is the 

LO's recommendation and then the basis for that recommendation. 

These two pieces of evidence must complement each other. If the LO 

recommends a denial, there should be a statement to indicate the basis 

for that recommendation. Absent such a statement, very little or no 

weight should generally be given to the recommendation. On the other 

hand, if the LO recommends a grant and there is a basis for that 

recommendation, then that recommendation should carry substantial 

evidentiary weight, especially if the issue is one of credibility. 

All of the foregoing factors should necessarily be taken into account 

in reaching a particular decision. Moreover, the Service has suggested 

a "balanced and flexible approach ... in evaluating an applicant's 

testimony and the overall sufficiency and probative value of the 

evidence he or she has provided to support his or her claim to 

eligibility."2In Matter of C-, 19 IN Dec. 808 (Comm. 1988), we 

noted also that Congress "expected 'INS to incorporate flexibility into 

the standards for legalization eligibility."' Id. at 810 (citation omitted). 

B. THE APPLICANT HAS ESTABLISHED BY A 

PREPONDERANCE OF THE EVIDENCE ELIGIBILITY 

UNDER SECTION 245A OF THE ACT 

We now turn to consider the evidence in this case. The applicant 

stated in his application that he last entered the United States on 

2 Memorandnm of Richard E. Norton, Associate Commissioner of Examinations, 

October 9, 1987, reprinted in 64 Interpreter Releases, No. 40, October 19, 1987, at 1171-

72. 

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Interim Decision #3113 

August 27, 1981, and that he has been self-employed as a handyman 

since that time. He has lived at three different addresses since August 

1981. With his application, he submitted a number of documents to 

corroborate the information provided. These documents consist of 

affidavits from acquaintances, a statement from a doctor, and a 

statement from a pastor. Most of these documents are notarized, and 

all the affiants stated their willingness to come forward and testify in 

this matter if necessary. 

The applicant also submitted the original Form 1-94 which shows a 

stamp from the Service indicating the applicant was admitted as a 

"B-2" visitor in New York City on August 27, 1981. This date of 

admission also appears in the applicant's passport, photocopies of 

which have been submitted by the applicant. 

The Service examiner who interviewed the applicant recommended 

that the application be granted. However, the examiner had sonic 

doubt because he suspected fraud. The examiner further noted as 

follows: "[The applicant] has only affidavits from 1981-1987 & a 

doctor's statement to prove his residence. I suggest more documentation to prove residence.... " The examiner's recommendation is 

puzzling when considered in the context of his other observations. 

Nonetheless, the examiner had an opportunity to view the demeanor 

of the applicant and to pursue whatever line of questioning was 

necessary. To the extent that the examiner recommended a grant, such 

evidence should be accorded much weight on the issue of the 

applicant's credibility absent some contrary information in the record. 

The director asked for additional information. Among other 

documents, the applicant submitted a notarized statement by an 

acquaintance who states he has known the applicant from 1981 until 

the present in New Jersey. The applicant submitted a sworn affidavit 

setting forth why he is unable to produce "any other proof to 

substantiate" his continuous residence in the United States since 1981 

to the present. The applicant explained that he lived with his relatives 

and did not pay any rent. 

On appeal, the applicant has submitted 13 additional affidavits. As 

we have stated, the volume of evidence is not necessarily the decisive 

factor in the search for the truth. The contents of the affidavits must be 

assessed and the quality of the evidence determined. Here, all of the 

affiants have explained the circumstances under which they came to 

know the applicant. All of the affiants have stated their willingness to 

come forward and testify if necessary. 

Having reviewed the evidence in the record we find as follows. 

While it is reasonable to expect an applicant who has been residing in 

this country since prior to January 1, 1982, to provide some 

documentation other than affidavits, the absence of contemporaneous 

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documentation is not necessarily fatal to an applicant's claim to 

eligibility. Although the Service regulations provide an illustrative list 

of contemporaneous documents that an applicant can submit, the list 

also permits the submission of affidavits and lajny other relevant 

document." 8 C.F.R. § 245a.2(d)(3)(iv)(L) (1988). The legal conclusion of the director that the applicant cannot meet his burden of proof 

by his "own testimony and that of unsupported affidavit" is inconsistent with the foregoing regulation. 

In this case, the applicant's presence in the United States prior to 

January 1982 has been established conclusively by official government 

documents. His continuous presence in the United States since that 

time has been documented by a number of affidavits ranging from 

acquaintances to employers to a priest. All of the affiants have stated 

their willingness to come forward and testify if necessary on behalf of 

the applicant. The information submitted by these affiants corroborates the information provided by the applicant on Form 1-687, 

namely, his continuous residence in the United States since August 27, 

1981. In his decision the director did not challenge either the 

credibility of the applicant and the affiants or the authenticity of the 

documents. 

We conclude that the applicant has probably been unlawfully 

residing in the United States since prior to January 1, 1982. We base 

this conclusion on the evidence submitted, particularly the original 

Service Form 1-94 and the applicant's passport, indicating the 

applicant entered the United States in 1981, and the affidavits 

submitted by persons who are willing to testify in this matter, and by 

the plausible explanation of the applicant as to why he is unable to 

submit additional information. 

For the foregoing reasons, we find that the applicant has established 

his eligibility for temporary resident status under section 245A of the 

Act by a preponderance of the evidence. 3 

ORDER: The appeal is sustained. The application for temporary resident status is approved. 

3We also find that the applicant has met the other grounds of eligibility. The 

applicant's status as a nonimmigrant expired prior to January 1, 1982, through the 

passage of time. There are no known grounds of inadmissibility, and he does not appear 

likely to become a public charge. 

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