Contesting removability
Before you apply for anything, the government has to prove its case. For a person who was admitted, DHS must establish deportability by clear and convincing evidence, and if it cannot, the case is terminated without any application for relief. Contesting the charge comes first, and conceding a charge the government could not have proven is one of the most common and most avoidable mistakes in removal defense.
Current as of September 2026. We re-check this page every quarter and after any rule change.
A removal case has two halves. In the first, the government tries to prove that you are removable as charged. In the second, you ask the judge for relief anyway. Most people, and some lawyers, skip the first half and go straight to the second. That is a mistake whenever the government's proof is thin, and it is thin more often than the Notice to Appear suggests. The order of operations is on how removal proceedings work; this page is the first half.
The two burdens
| How you are charged | Who proves what | Standard | Authority |
|---|---|---|---|
| Admitted, now deportable | DHS proves deportability | Clear and convincing evidence | INA 240(c)(3)(A); 8 C.F.R. 1240.8(a); Woodby v. INS, 385 U.S. 276 (1966) |
| Applicant for admission, including entry without inspection | You prove admissibility, after DHS establishes alienage | Clearly and beyond doubt entitled to be admitted, or clear and convincing evidence of lawful presence under a prior admission | INA 240(c)(2); 8 C.F.R. 1240.8(b)-(c) |
The Supreme Court described the government's standard in Woodby v. INS as clear, unequivocal and convincing evidence. It is a higher bar than the preponderance standard that governs most civil cases, and it is the government's to carry. The judge does not fill gaps.
Which burden applies is itself contested
The Notice to Appear says which group DHS thinks you are in. That is an allegation, not a finding. Under Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), "admitted" means a procedurally regular inspection and admission, whether or not it was substantively lawful. A person who drove through a port of entry and was waved on without questions was admitted. A person who presented someone else's document and was let in was admitted. Each of them is in the first row of the table, with the burden on DHS, even if the notice charges them as present without admission.
For a person charged with being present without admission or parole, 8 C.F.R. 1240.8(c) requires DHS to establish alienage first. Only then does the burden shift to the respondent to show a lawful admission or entitlement to admission. If the government cannot prove that you are not a citizen, the burden never shifts.
What the government's proof looks like
In most cases DHS offers three kinds of evidence, and each can be contested.
The Form I-213
The Record of Deportable/Inadmissible Alien is the report the arresting or encountering officer wrote, and it usually contains the statements the government relies on for nationality and manner of entry. Under Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999), it is presumptively reliable, and it is admitted without the officer being called, unless you show that it contains information that is incorrect or was obtained by coercion or duress.
Rebutting the presumption takes evidence, not argument. A declaration from you explaining what was actually said and under what conditions. Inconsistencies inside the document itself, or between it and other government records. Proof that the officer did not speak your language and no interpreter was used. Where the statements were obtained through an egregious violation of the Fourth Amendment or through coercion, the remedy is a motion to suppress, which, if granted, can leave the government with no proof of alienage at all.
The conviction records
Where the charge rests on a criminal conviction, DHS offers the record of conviction, and the question is whether that conviction fits the ground charged. The answer comes from the categorical approach. Under Moncrieffe v. Holder, 569 U.S. 184 (2013), Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 579 U.S. 500 (2016), the judge compares the elements of the statute of conviction, not the facts of what you did, to the generic federal definition of the ground, and the minimum conduct the statute criminalizes controls. If the statute reaches conduct outside the federal definition, the conviction does not establish the charge, whatever you actually did. Under Mellouli v. Lynch, 575 U.S. 798 (2015), a state drug conviction is a controlled-substance offense only if the substance is on the federal schedules. And under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), a conviction vacated for a substantive or procedural defect is no longer a conviction at all. The full analysis, ground by ground, is on criminal convictions and removal.
Your own admissions
The third source of proof is you. Every allegation you admit at the master calendar is evidence the government no longer has to produce. That is why the next section exists.
Why not to concede
Under 8 C.F.R. 1240.10(c), the judge requires you to plead to each allegation and each charge, and admissions are not required. Denying an allegation the government can easily prove costs little; the judge will find it proven and move on. Admitting an allegation the government could not have proven costs the case, because the admission is the proof.
Conceding also shapes the second half of the case. A person who concedes an aggravated felony charge has closed the door on cancellation of removal, on asylum, and on voluntary departure, all of which the statute bars for that conviction. A person who concedes entry without inspection has taken on the burden of proof and given up the argument that a wave-through was an admission. Concessions travel: they are in the record before the Board and before the court of appeals, and there is no taking them back.
Contesting the charge and applying for relief are different questions
Winning the first does not decide the second. Under 8 C.F.R. 1240.8(d) and Pereida v. Wilkinson, 592 U.S. 224 (2021), an applicant for relief bears the burden of showing that a conviction is not disqualifying and loses if the record is inconclusive. So the same inconclusive record that defeats the government's charge can defeat your application. The strategy is to make the government carry its burden first, and only then to decide what to apply for, with the record as it then stands.
How the contest runs
- Read the notice against the statute and against your own documents, before the first hearing. Any objection to the notice itself has to be raised before pleadings close.
- Plead deliberately at the master calendar hearing. Deny what the government has not proven.
- Make the government put in its evidence. The judge sets a hearing on removability, or takes it up at the individual hearing. DHS offers the I-213, the conviction records, or both.
- Attack the evidence: rebut the I-213, move to suppress, run the conviction through the categorical approach, and put in your own proof of admission where the burden is yours.
- Object on the record to everything you contest, so that the issue is preserved. The Board reviews the judge's findings of fact for clear error and questions of law de novo under 8 C.F.R. 1003.1(d)(3), and what was not raised is hard to raise later.
The endpoint: the motion to terminate
If the government cannot sustain the charge, the case ends. Under the 2024 regulation at 8 C.F.R. 1003.18(d), failure to sustain any charge of removability is among the circumstances in which the judge must terminate. Termination is not a grant of anything. It returns you to the position you were in before the notice was filed, with no removal order, free to pursue whatever you were eligible for outside of court. The motion, its grounds and its timing are on motions to terminate.
The motion is usually made after DHS has rested on its evidence, orally at the hearing and then in writing. There is no government filing fee for a motion to terminate while the case is pending before the judge. If the judge denies it, the case goes on, you file your applications for relief in the alternative, and the denial is reviewed by the Board as part of the appeal from the final decision.
Read next: motions to suppress, criminal convictions and removal, motions to terminate, or every form of relief.
Common questions
Who has to prove I am removable?
It depends on how you are charged. If you were admitted to the United States, DHS bears the burden of proving deportability by clear and convincing evidence under INA 240(c)(3)(A) and 8 C.F.R. 1240.8(a). If you are charged as an applicant for admission, INA 240(c)(2) puts the burden on you to show that you are clearly and beyond doubt entitled to be admitted, or by clear and convincing evidence lawfully present under a prior admission. Under Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), a person who was waved through a port of entry was admitted, even if the admission was not substantively lawful.
What is the Form I-213 and why does it matter?
It is the Record of Deportable/Inadmissible Alien, the report an immigration officer writes at the time of arrest or encounter. In most cases it is the government's main evidence of alienage and manner of entry. Under Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999), it is presumed reliable unless you show it contains information that is incorrect or was obtained by coercion or duress. Rebutting it, or suppressing it, is often the whole contest.
If I entered without inspection, is there anything to contest?
Yes. Under 8 C.F.R. 1240.8(c), DHS must first establish alienage before the burden shifts to a person charged with being present without admission. If the only proof of alienage is a statement obtained through an egregious constitutional violation, a motion to suppress can remove it. And whether you were in fact admitted, for example by being waved through, is itself contestable.
What happens if the government cannot prove the charge?
The judge terminates proceedings. The 2024 regulation at 8 C.F.R. 1003.18(d) lists failure to sustain any charge among the circumstances in which the judge must terminate. Termination ends the case without a removal order and without any grant of relief, and it returns you to the position you were in before the notice was filed.
Tell us where your case is. We will tell you what is still possible.
You get a free case review with an attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will tell you what stage you are at, which forms of relief are open to you, what your deadlines are, and whether we can help. If we cannot, we will say so.