“Unequivocal Certainty” in Removal Proceedings: The First Circuit Elevates the Government’s Burden for Proving Alienage in Inadmissibility Cases

1. Introduction

Da Silva Borges v. Bondi, No. 24-1695 (1st Cir. July 18, 2025), marks a pivotal moment in immigration jurisprudence. The petitioners—Marcos Da Silva Borges, Eliane Maria Silva Teixeira Borges, and their two minor children—challenged an order of removal predicated on their alleged inadmissibility under Immigration and Nationality Act (INA) § 212(a)(6)(A)(i). Central to their appeal was the contention that the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) utilized an erroneously low evidentiary threshold (“clear and convincing”) rather than the historically weightier formula (“clear, unequivocal, and convincing”) mandated where alienage is contested in inadmissibility cases.

One week earlier, in Rosa v. Bondi, the same Circuit declared that Woodby’s “clear, unequivocal, and convincing” criterion is the governing standard in these circumstances and is measurably more demanding than “clear and convincing.” Here, the Borges family rode the wake of Rosa to secure reversal and remand.

2. Summary of the Judgment

Key Holding: Where the government charges non-admitted individuals with inadmissibility, it must establish alienage by “clear, unequivocal, and convincing” evidence— a burden higher than “clear and convincing.”
Disposition: Petition for review granted; BIA order vacated; case remanded for further proceedings applying the correct standard.
Rationale: The panel, bound by its own precedent in Rosa, found the agency applied the wrong legal standard and therefore committed reversible error. The Court declined to reach the subsidiary reliability challenges to the government’s documentary evidence (EARM summaries) until the agency re-evaluates that evidence under the higher burden.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

Woodby v. INS, 385 U.S. 276 (1966) – Originated the “clear, unequivocal, and convincing” standard for deportation, treating expulsion from the country as a sanction so severe that near-certainty is required.
Schneiderman v. United States, 320 U.S. 118 (1943) – Earlier analogue in denaturalization; underscored that precious status rights demand stringent proof.
Addington v. Texas, 441 U.S. 418 (1979) – Defined varying intermediate burdens; its dictum that “unequivocal” signals proof “admit[ting] of no doubt” fortified the First Circuit’s view that adding “unequivocal” materially elevates the burden.
United Mine Workers v. Gibbs, 383 U.S. 715 (1966); Santosky v. Kramer, 455 U.S. 745 (1982) – Samples of Supreme Court vocabulary mixing “clear and convincing” with “clear, unequivocal, and convincing.” The concurring opinion uses these to question the majority’s gulf between the two phrases.
Rosa v. Bondi, ___ F.4th ___, 2025 WL 1912130 (1st Cir. Jul. 11, 2025) – The controlling First Circuit precedent directly on point, holding the standards distinct and binding within the Circuit.

These authorities together sculpted the primary dispute: does “unequivocal” add substantive heft? The panel answered “yes,” tethering itself to Addington and the textual juxtaposition inside the INA where Congress alternates between the two formulations, signalling deliberate differentiation.

3.2 The Court’s Legal Reasoning

Step 1: Identify the Applicable Standard. The panel referenced Woodby and its incorporation by Rosa into inadmissibility contexts, concluding the correct benchmark is “clear, unequivocal, and convincing.”
Step 2: Determine Relative Stringency. Drawing on Addington, statutory contrasts (e.g., INA §§ 1229a(c)(3) vs. 1229a(b)(5)(A)), and dictionary sources, the Court interpreted “unequivocal” as a qualitative addition that demands near-certainty rather than mere high probability.
Step 3: Error Identification. Because both the IJ and BIA expressly applied the lower “clear and convincing” test, their determinations rested on an incorrect legal premise and could not stand.
Step 4: Remedy. Vacatur and remand allow the agency to re-evaluate the EARM summaries—whose sufficiency remains an open question—under the newly minted higher burden.

3.3 Impact on Future Litigation and Immigration Law

Short-Term Effects:

Any ongoing First Circuit case where inadmissibility is charged and alienage contested will require the government to meet the “clear, unequivocal, and convincing” standard.
Practitioners will scrutinize documentary evidence such as I-213s, EARM printouts, and biometric records with greater vigor, attacking gaps, lack of signatures, or hearsay components.

Medium-Term Effects:

DHS may need to adjust litigation strategy—producing live testimony, certified records, or corroborating documents—to satisfy the enhanced burden.
IJ and BIA decisions based on pre-Rosa/Borges standards are ripe for motions to reopen or sua sponte reconsideration.

Long-Term / Systemic Effects:

Possible Circuit split: other Circuits (e.g., Fifth, Eleventh) have historically blended the two standards. Divergence could provoke en banc review or Supreme Court resolution.
Congressional response: To harmonize evidentiary burdens, Congress might amend INA § 240(c) to specify a single standard.
Resource allocation: Heightened proof demands may slow docket throughput in “no-relief-sought” cases, incentivizing DHS to grant alternative dispositions (withdrawal of application for admission, return to border, voluntary departure).

4. Complex Concepts Simplified

a. “Clear, Convincing,” and “Unequivocal” Evidence

Think of burdens of proof as rungs on a ladder:

Preponderance of the evidence (civil default) – just over 50% certainty.
Clear and convincing evidence – high probability; roughly 70-80% certainty, leaving only a reasonable doubt.
Clear, unequivocal, and convincing evidence – “no serious or substantial doubt;” approaching criminal “beyond a reasonable doubt” but still marginally lower.

b. Inadmissibility vs. Deportability

• Inadmissible: The person was never formally admitted or paroled; removal is technically a continuation of the exclusion process.
• Deportable: The person was lawfully admitted but later violated conditions or incurred disqualifying conduct.

Historically, deportable aliens received more procedural protections; Borges nudges balance toward inadmissible entrants.

c. EARM Summaries / I-213 Forms

Electronic records generated by DHS at apprehension. They are hearsay exceptions as government business records but are susceptible to authenticity and reliability challenges—e.g., unsigned, templated narratives, language barriers, or implausible statements attributed to children.

5. Conclusion

Da Silva Borges v. Bondi cements, within the First Circuit, a stricter mandate for the government when seeking to remove individuals on inadmissibility grounds: proof of alienage must be “clear, unequivocal, and convincing.” By enforcing this elevated standard, the Court reinforces the gravity of expulsion and ensures that only well-substantiated cases result in removal. The decision reverberates beyond this single family’s plight, reshaping evidentiary expectations, inviting revisitation of past cases, and setting the stage for broader doctrinal debate—possibly before the Supreme Court—over the true meaning of “clear and convincing” in immigration and other high-stakes civil proceedings.