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A visa overstay accused of falsely claiming citizenship on an employment form gets a new hearing, and green card applicants across five states get an easier standard of proof.
The Fourth Circuit has lowered the green card burden of proof for people who entered the United States legally and later seek adjustment of status in immigration court: they must now prove they are admissible by a preponderance of the evidence, not “clearly and beyond doubt.” The Nov. 2 published opinion in Nivar Santana v. Blanche, No. 22-2114, grants the petition of a Dominican woman whose green card case collapsed over a checked box on a 2013 Form I-9, and it applies in immigration courts in Maryland, Virginia, West Virginia, North Carolina and South Carolina.
The ruling shows what the end of Chevron deference means in immigration court. The same court decided the same case the other way in February 2024, deferring to the Board of Immigration Appeals. After Loper Bright, the Supreme Court vacated that ruling and sent it back, and this time the panel read the statute itself and found the board wrong.
One checked box and two standards of proof
Sintia Nivar Santana came to the United States in 2000 on a B1/B-2 visitor visa with her young son and overstayed. The son later became a citizen through Army service and filed a Form I-130 for her in 2014. USCIS denied her adjustment application in March 2016, finding that she had falsely claimed U.S. citizenship on the employment eligibility form for a 2013 job with a Connecticut elder-care provider. A false claim to citizenship is among the harshest grounds of inadmissibility in the Immigration and Nationality Act: a permanent bar with no general waiver.
The facts were murky. At her 2018 hearing she testified that she did not remember checking the citizen box, and a witness did not know who had checked it, according to the opinion. The immigration judge required her to prove “clearly and beyond doubt” that she had not made the claim, the burden in 8 U.S.C. 1229a(c)(2)(A) for applicants for admission, and the board affirmed in October 2022.
That choice of standard decided the case. Under “clearly and beyond doubt,” an applicant who cannot explain an ambiguous document loses. Under a preponderance standard, the judge asks only whether it is more likely than not that she is admissible, so testimony like hers, and uncertainty about who filled in the form, can carry real weight.
Why the panel rejected the green card burden of proof the board used
For decades the board has “assimilated” adjustment applicants to the position of someone at the border seeking admission, which pulled in the stricter standard. Writing for Judges Robert King and Toby Heytens, Judge Stephanie Thacker called that practice an “aberration” from the general rule for people seeking relief from removal. A noncitizen who was lawfully admitted years earlier is not an “applicant for admission” under 8 U.S.C. 1225(a)(1), the court held, and the regulation imposing the higher burden, 8 C.F.R. 1240.8, reserves it for arriving noncitizens and those present without admission or parole. Everyone else seeking relief, including admitted adjustment applicants, falls under the preponderance rule in 8 U.S.C. 1229a(c)(4) and 8 C.F.R. 1240.8(d).
The government argued that a 2014 Fourth Circuit case, Dakura v. Holder, already settled the question. The panel disagreed: “Our statement on the applicable burden of proof in Dakura was dicta.” The 2024 opinion had hinted at doubts even while deferring, asking in a footnote whether “the situation deserves another look from the Department of Justice.”
A circuit split the Supreme Court may have to settle
The holding covers previously admitted applicants, such as visa overstays adjusting through a relative, whose cases are in immigration court in the five Fourth Circuit states. It does not address people who entered without inspection or USCIS adjudications outside removal proceedings. The case returns to the board, which must weigh the same disputed Form I-9 under the lower standard; the ruling does not decide whether she made a false claim.
The larger consequence is a sharper split among the circuits. The court’s 2024 opinion listed the Second, Sixth and Eighth Circuits as applying the “clearly and beyond doubt” standard to adjustment applicants, and the Ninth Circuit, in Romero v. Garland (2021), as declining to treat an admitted noncitizen as an applicant for admission. Those rulings all predate Loper Bright, and the new opinion does not discuss them. The Justice Department can seek rehearing by the full court or Supreme Court review. Until the split is resolved, the same overstay with the same disputed document can face a different burden of proof in Baltimore than in New York.
Related: the board’s ruling on arriving alien adjustment and reopening, its aggravated felony green card bar, the Supreme Court case on losing asylum and the green card path, and the adjustment of status memo lawsuit.
This article is for general information and is not legal advice.
Sources
- U.S. Court of Appeals for the Fourth Circuit, Nivar Santana v. Blanche, No. 22-2114, opinion on remand (Nov. 2, 2026)
- U.S. Court of Appeals for the Fourth Circuit, Nivar Santana v. Garland, No. 22-2114, original opinion (Feb. 2, 2024)
- Law360, “4th Circ. Says ‘Beyond Doubt’ Doesn’t Apply In Green Card Bid” (Nov. 2, 2026)
- 8 U.S.C. 1229a(c)(2) and (c)(4), burdens of proof in removal proceedings
- 8 C.F.R. 1240.8, burdens of proof in removal proceedings
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