Sintia Nivar Santana v. Todd Blanche
CourtCourt of Appeals for the Fourth Circuit
Date FiledNovember 2, 2026
Docket22-2114
StatusPublished
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Full Opinion
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-2114
SINTIA DINES NIVAR SANTANA,
Petitioner,
v.
TODD BLANCHE, Attorney General,
Respondent.
On Remand from the Supreme Court of the United States. (S. Ct. No. 24-46)
Argued: September 15, 2026 Decided: November 2, 2026
Before KING, THACKER, and HEYTENS, Circuit Judges.
Petition for review granted by published opinion. Judge Thacker wrote the opinion, in
which Judge King and Judge Heytens joined.
ARGUED: Hans Christian Linnartz, LINNARTZ LAW OFFICE, P.A., Raleigh, North
Carolina, for Petitioner. Gregory Michael Kelch, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin R. Winograd,
IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia; Jeffrey
L. Fisher, Menlo Park, California, Parisa Sadeghi, O’MELVENY & MYERS LLP, New
York, New York, for Petitioner. Yaakov M. Roth, Acting Assistant Attorney General,
Brian M. Boynton, Principal Deputy Assistant Attorney General, Walter Bocchini, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
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THACKER, Circuit Judge:
Sintia Dines Nivar Santana (“Petitioner”), a native and citizen of the Dominican
Republic, applied for adjustment of status after she was placed in removal proceedings.
An immigration judge (“IJ”) determined Petitioner was ineligible for adjustment of status
because she had falsely claimed to be a United States citizen when she executed an
employment eligibility form. Contrary to Petitioner’s argument, the IJ held that Petitioner
was required to establish her admissibility clearly and beyond doubt, rather than by a
preponderance of the evidence. Finding Petitioner did not meet that standard, the IJ denied
her application, and the Board of Immigration Appeals (“BIA”) affirmed.
Petitioner previously sought our review of the BIA’s final order. We denied her
petition for review and concluded the IJ and BIA did not err in applying the clearly and
beyond doubt standard in these proceedings. In making this determination, we deferred to
the BIA pursuant to Chevron. 1 After we issued our prior opinion in this case, the Supreme
Court of the United States vacated that prior opinion and remanded for reconsideration in
light of Loper Bright Enters. v. Raimondo, which held it is up to “the reviewing court – not
the agency whose action it reviews – [] to decide all relevant questions of law and interpret
statutory provisions.” 603 U.S. 369, 398 (2024) (cleaned up) (emphasis in original).
Upon reconsideration, we conclude that adjustment of status applicants like
Petitioner bear the burden of proving admissibility by a preponderance of the evidence.
1
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984) (requiring courts to defer to an agency’s interpretation of an ambiguous statute if
that interpretation was based on a permissible construction of the statute).
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Because we hold the IJ and BIA erred in requiring Petitioner to prove admissibility clearly
and beyond doubt, we grant the petition and remand for proceedings consistent with this
opinion.
I.
A.
Petitioner and her minor son were admitted into the United States in 2000 with B-
1/B-2 visitor visas. They both remained in the United States past the expiration of their
visas. In 2014, Petitioner’s son naturalized through honorable service in the United States
Army and sponsored Petitioner’s initial adjustment of status application by filing a form I-
130 on her behalf.
In March 2016, United States Customs and Immigration Services (“USCIS”) denied
Petitioner’s initial adjustment of status application, ruling that she was inadmissible for
falsely claiming to be a United States citizen when she executed an employment eligibility
form upon applying for a job in 2013 at Golden Horizons, an elder-care provider in
Connecticut. That is, on the employment eligibility form apparently bearing Petitioner’s
signature, there was a checked box corresponding to an affirmative response that said: “I
attest, under penalty of perjury, that I am . . . [a] citizen of the United States.” J.A. 184. 2
In January 2017, nearly a year after her adjustment of status application was denied, USCIS
served Petitioner a notice to appear before an IJ, charging her with removability for
overstaying her visa, pursuant to 8 U.S.C. § 1227(a)(1)(B).
2
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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B.
1.
At a preliminary hearing before the IJ in July 2018, Petitioner conceded
removability on the ground that she had overstayed her visa, but she renewed her
adjustment of status application based on the same form I-130 which had been approved
by the USCIS when her naturalized son initially submitted it on her behalf. At a subsequent
hearing in August 2018, Petitioner’s lawyer advised the IJ that an employee of Golden
Horizons who assisted Petitioner with completing the eligibility form was “eager” and
“willing to come and give” testimony that Petitioner did not falsely claim to be a United
States citizen on the employment eligibility form, and that someone else had
inappropriately made that assertion therein. J.A. 76. The IJ calendared an evidentiary
hearing for October 29, 2018, and advised the parties that any evidence to be considered
had to be filed with the immigration court at least 15 days before the hearing.
The Department of Homeland Security (“DHS”) did not submit any documentary
evidence. Petitioner, however, filed evidence with the immigration court, including her
affidavit of September 28, 2018. In her affidavit, Petitioner acknowledged that her initial
application for adjustment of status had been denied on grounds that she had falsely
claimed to be a citizen. But she swore that she had examined a copy of the employment
eligibility form, that she did not recognize it as “something that [she had] ever read or
signed,” and that she had never “knowingly checked the box that says I am a citizen of the
United States.” J.A. 194. Neither party submitted the employment eligibility form to the
court prior to the evidentiary hearing.
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On October 29, 2018, the IJ conducted an evidentiary hearing on the merits of
Petitioner’s adjustment of status application. During the hearing, Petitioner asserted that
the applicable standard was proof by a preponderance of the evidence, but the IJ advised
Petitioner that she was required to demonstrate “clearly and beyond doubt” that she was
admissible. J.A. 85.
When Petitioner was on the witness stand, her lawyer attempted to show her the
employment eligibility form at issue. However, the IJ advised that he had “never been
provided with a copy” of the employment eligibility form by either party. J.A. 98. DHS
opined that the employment eligibility form “should have been in the record already,” but
the IJ indicated he had never seen it and could not locate it in the record. Id. at 99. DHS
then provided a copy of the employment eligibility form to the IJ, and the IJ accepted it
into evidence. Petitioner objected to the admission of the form on authenticity grounds,
and DHS replied that the employment eligibility form had “been litigated” and was “kept
in the regular course.” Id. at 100. The IJ overruled Petitioner’s objection and accepted the
employment eligibility form into evidence.
Thereafter, Petitioner’s lawyer asked Petitioner if she recognized the employment
eligibility form, and she responded, “Yes, I think I fill[ed] it out.” J.A. 103–04. She then
clarified that she had filled out only “the top part” and, upon questioning by the IJ, admitted
that she recognized her handwriting. Id. at 104–05. But Petitioner testified that she did
not remember checking the box indicating that she was “[a] citizen of the United States.”
Id. at 105, 184.
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Kathy DeVeau -- an administrator for Golden Horizons elder care -- also testified.
DeVeau acknowledged that she recognized the employment eligibility form related to
Petitioner’s hiring. She further recognized her own handwriting on the portion of the
employment eligibility form that includes Petitioner’s driver’s license information. She
also recognized the handwriting of her supervisor -- Jan Hamilton, an Assistant President
of Golden Horizons -- on the social security portion of the employment eligibility form.
When asked if Petitioner had checked the box indicating that she was a United States
citizen, DeVeau testified that she did not know. She went on to testify that she believed
that Hamilton “probably” placed the checkmark on the employment eligibility form. J.A.
161. DeVeau believed this because she had seen Hamilton “do [that to] other documents.”
Id. at 166. According to DeVeau, Petitioner never claimed to be a United States citizen
and, to the contrary, had disclosed to DeVeau that she was not a citizen.
Additionally, Petitioner submitted a letter from Hamilton. Hamilton said that she
did not place the checkmark on the employment eligibility form herself. Instead, she
asserted that it might have been DeVeau that checked the box. Further, Hamilton said that
she “would be surprised if [Petitioner] knowingly checked the box claiming to be a [United
States] citizen” because (1) Petitioner had never claimed to be a citizen; (2) she and
Petitioner had talked about Petitioner’s family in the Dominican Republic; and (3)
Petitioner was a “completely honest individual.” J.A. 189.
2.
In November 2018, the IJ denied Petitioner’s renewed application for adjustment
of status and ordered her removed. In denying Petitioner’s application, the IJ ruled that
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Petitioner was “in the position of a[ noncitizen] applying for admission to the United
States.” J.A. 58 (quoting Crocock v. Holder, 670 F.3d 400, 403 (2d Cir. 2012)). As such,
according to the IJ, Petitioner bore the burden of establishing “clearly and beyond doubt
[she was] entitled to be admitted and is not inadmissible.” Id. (quoting 8 U.S.C.
§ 1229a(c)(2)(A)). From there, the IJ reasoned that Petitioner was inadmissible for falsely
claiming to be a citizen on the employment eligibility form because the record evidence
was “inconclusive.” Id. at 59. Ultimately, with no one confirming who had checked the
box on the employment eligibility form, the IJ ruled that Petitioner had not proved clearly
and beyond doubt that she had not checked the box claiming citizenship.
C.
Thereafter, Petitioner filed a timely notice of appeal with the BIA. Petitioner
maintained that she only needed to demonstrate her admissibility by a preponderance of
the evidence, and not by evidence that was clear and beyond doubt. She also challenged
the IJ’s admission of the employment eligibility form, along with the IJ’s weighing of the
evidence.
In October 2022, the BIA affirmed the IJ’s decision and dismissed Petitioner’s
appeal. The BIA reasoned that its precedent, as well as that of our court, makes clear that
Petitioner’s burden is to satisfy the clearly and beyond doubt standard. The BIA reiterated
that an applicant for adjustment of status must satisfy the higher burden because that type
of applicant is in a similar position to a noncitizen seeking entry. J.A. 5 (citing Matter of
Bett, 26 I&N Dec. 437, 440 (BIA 2014); Dakura v. Holder, 772 F.3d 994, 998 (4th Cir.
2014)). The BIA also ruled that the IJ had not erred in admitting the employment eligibility
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form into evidence because Petitioner had not shown that its admission was fundamentally
unfair. The BIA emphasized that Petitioner recognized the employment eligibility form as
a document she had “fill[ed] out” and that Petitioner conceded that her handwriting was on
the employment eligibility form. Id. at 6. Moreover, the BIA concluded that the IJ’s
“questioning of the [Petitioner] with regard to the [employment eligibility form] was
consistent with his adjudicatory role to ensure that admission of the document would be
‘fundamentally fair’ to” Petitioner. Id.
Finally, the BIA upheld the IJ’s weighing of the evidence and was satisfied that the
IJ had not erred. The BIA ruled that, although Petitioner asserted that she did not check
the box on the employment eligibility form claiming citizenship, “the record was
inconclusive as to who did.” J.A. 7. The BIA emphasized that neither DeVeau nor
Hamilton had definitively identified who checked the box, leaving the evidence as
equivocal at best, and falling short of being proof that was “clear[ ] and beyond doubt.” Id.
After being denied relief by the BIA, Petitioner sought review in this court, and we
denied her petition for review. In doing so, we accorded Chevron deference to the BIA’s
longstanding practice of assimilating noncitizens applying for adjustment of status to the
position of an applicant for admission. We also cited Dakura, in which we stated, a
“[noncitizen] bears the burden of proving that he ‘clearly and beyond doubt . . . is not
inadmissible under [8 U.S.C. §] 1182.’” 772 F.3d at 998 (quoting 8 U.S.C.
§ 1229a(c)(2)(A)).
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Because the Supreme Court later invalidated Chevron, it granted Petitioner’s
petition for certiorari, vacated our decision, and remanded for further consideration in light
of Loper Bright. See Santana v. Garland, 145 S. Ct. 1042 (2025).
II.
Whether the BIA or the IJ applied the proper legal standard is a question of law
subject to de novo review. See Perez Vasquez v. Garland, 4 F.4th 213, 221 (4th Cir. 2021).
It is up to “the reviewing court – not the agency whose action it reviews – [] to decide all
relevant questions of law and interpret statutory provisions.” Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 398 (2024) (cleaned up).
III.
Petitioner raises a single issue on remand. She argues that the IJ and BIA erred in
requiring her -- an applicant for adjustment of status who had been previously admitted to
the United States -- to prove her admissibility clearly and beyond doubt, rather than by a
preponderance of the evidence.
Petitioner raises two arguments in support of her position. First, she argues that the
best reading of the relevant Immigration and Nationality Act (“INA”) statutory provisions
is that a previously admitted noncitizen seeking relief from removal by adjustment of status
need only prove she satisfies the applicable eligibility requirements -- including
admissibility -- by a preponderance of the evidence. Second, she argues that the
articulation of the applicable standard of proof when determining an adjustment of status
applicant’s admissibility in Dakura was dicta. Conversely, the Government argues that we
are bound by our decision in Dakura and that, even if we are not bound by Dakura,
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requiring adjustment of status applicants to prove admissibility clearly and beyond doubt
represents the best reading of the INA.
A.
Adjustment of Status Process
We begin with an overview of the adjustment of status process. If approved,
adjustment of status grants an eligible noncitizen legal status as a lawful permanent resident
(“LPR”). This new legal status is significant because LPRs are eligible to naturalize and
ultimately become citizens of the United States.
The threshold eligibility requirement in most adjustment of status cases is having
been previously “inspected and admitted . . . into the United States.” 8 U.S.C. § 1255(a).
Here, Petitioner was previously admitted, so this threshold eligibility requirement has been
met. Once inspected and admitted, the noncitizen’s status may be adjusted to that of an
LPR if:
(1) the [noncitizen] makes an application for such adjustment,
(2) the [noncitizen] is eligible to receive an immigrant visa and
is admissible to the United States for permanent residence, and
(3) an immigrant visa is immediately available to [her] at the
time [her] application is filed.
8 U.S.C. § 1255(a).
Once those requirements are satisfied and the noncitizen’s application is approved, “the
Attorney General shall record the [noncitizen’s] lawful admission for permanent residence
as of the date the order of the Attorney General approving the application for the adjustment
of status is made.” 8 U.S.C. § 1255(b).
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A noncitizen may also apply for adjustment of status during removal proceedings.
There are two stages to every removal proceeding. At stage one, the IJ determines whether
a noncitizen is removable. In assessing removability, different burdens of proof apply to
different categories of noncitizens. An “applicant for admission” must prove that she “is
clearly and beyond doubt entitled to be admitted.” 8 U.S.C. § 1229a(c)(2)(A). If a
noncitizen was previously admitted to the United States, she must prove “by clear and
convincing evidence” that she “is lawfully present in the United States pursuant to [the]
prior admission.” Id. § 1229a(c)(2)(B). And if she proves she is lawfully present pursuant
to a prior admission, the burden then shifts to the Government to prove “by clear and
convincing evidence” that the noncitizen is nonetheless removable. Id. § 1229a(c)(3)(A).
If the IJ concludes that the noncitizen is not removable at stage one, the removal
proceedings are terminated. See 8 C.F.R. § 1003.18(d)(1)(i)(A). But if a noncitizen is
deemed removable, or concedes removability at stage one, she may then apply for relief
from removal during stage two. While there is no exhaustive list of applications for relief
from removal, the most common are adjustment of status, cancellation of removal,
withholding of removal, asylum, and voluntary departure. Each application has its own
unique eligibility criteria that must be proven by the noncitizen during the second stage of
removal proceedings. See 8 U.S.C. § 1229a(c)(4).
A noncitizen applying for adjustment of status during the second stage of removal
proceedings must show she satisfies the various threshold eligibility requirements
established by Congress. First, the noncitizen must prove she was previously inspected
and admitted into the United States. See 8 U.S.C. § 1255(a). Second, the noncitizen must
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submit an adjustment of status application. Id. Third, the noncitizen must prove she is
admissible and eligible to receive an immigrant visa. Id. Lastly, a visa must be available
to the noncitizen at the time the application is filed. Id. And generally, noncitizens seeking
any of the various forms of relief from removal must prove they satisfy the eligibility
requirements applicable to the form of relief they pursue “by a preponderance of the
evidence.” 8 C.F.R. § 1240.8(d); see also 8 U.S.C. § 1229a(c)(4) (explaining that the
noncitizen “applying for relief or protection from removal has the burden of proof”).
Despite this, a noncitizen seeking adjustment of status as a form of relief from
removal has been previously required to prove the third eligibility requirement, that she is
admissible, clearly and beyond doubt. This aberration from the general rule that
noncitizens seeking relief from removal must prove they satisfy the applicable eligibility
requirements by a preponderance of the evidence was born from the BIA’s longstanding
interpretation that adjustment of status applicants are assimilated to the position of
applicants for admission who are seeking entry at the border. And pursuant to the INA, “if
the [noncitizen] is an applicant for admission,” then she bears the burden of proving
“clearly and beyond doubt [she is] entitled to be admitted and is not inadmissible under [§]
1182 of [Title 8].” 8 U.S.C. § 1229a(c)(2)(A).
B.
The Best Reading of the Statute
In the present case, during the first stage of her removal proceedings Petitioner
conceded removability for overstaying her visa. At the second stage, Petitioner sought
relief from removal by applying for adjustment of status. And because Petitioner was
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already inspected and admitted into the United States, she argues that she is not an applicant
for admission and must therefore prove the third eligibility requirement for adjustment of
status, admissibility, only by a preponderance of the evidence.
Congress specified that an “application for admission” refers “to the application for
admission into the United States and not to the application for the issuance of
an immigrant or nonimmigrant visa.” 8 U.S.C. § 1101(a)(4). “Admission” and “admitted”
are defined as “the lawful entry of the [noncitizen] into the United States after inspection
and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). And “‘when
Congress takes the trouble to define the term it uses,’ courts are obligated to use that
definition rather than the ordinary meaning of the term of art wherever it appears in the
text.” Lopez Garcia v. Guadian, -- F.4th -- , 2026 WL 2661092, at *9 (4th Cir. Sept. 10,
2026) (quoting Dep't of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 59
(2024)).
Applying the statutory definition of “admission” and “admitted,” we previously
concluded that neither term “includes an adjustment of status; instead, both contemplate a
physical crossing of the border following the sanction and approval of United States
authorities.” Bracamontes v. Holder, 675 F.3d 380, 385 (4th Cir. 2012). Moreover, in
Azumah v. United States Citizenship & Immigr. Servs., we concluded, “the phrase ‘lawfully
admitted for permanent residence,’ as used in the INA, has nothing to do with ‘admission’
at all.” 107 F.4th 272, 276 (4th Cir. 2024); see also Aremu v. Dep’t of Homeland Sec., 450
F.3d 578, 583 (4th Cir. 2006) (holding that the date of a noncitizen’s adjustment of status
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does not constitute a date of admission in situations where the applicant was previously
admitted).
We recognize that, without further context, § 1255 could be read to suggest that
applicants for adjustment of status are also applicants for admission -- they must be
“admissible,” 8 U.S.C. § 1255(a) (emphasis supplied), and the date of their adjustment of
status is recorded as their date of “lawful admission,” id. § 1255(b) (emphasis supplied).
But, when read in context, our case law confirms that is not the case. For example, in
Aremu, we explained the difference between proving admissibility and achieving an
“admission” into the United States as it is statutorily defined. 450 F.3d at 582. We
reasoned that the INA defines “admission” as “the lawful entry of the [noncitizen] into the
United States after inspection and authorization by an immigration officer.” Id. at 581
(emphasis in original). And while “only an admissible [noncitizen] can be admitted . . . it
does not follow that to require a[ noncitizen] to possess the qualifications [to be] labeled
‘admissib[le],’ is to ‘admit’ the [noncitizen]. An ‘admissible’ [noncitizen] is simply one
who is eligible for admission.” Id. at 582. Therefore, while an adjustment of status
applicant in Petitioner’s case must prove admissibility, that does not mean she is seeking
or obtaining admission into the United States.
Additionally, while the term “applicant for admission” does not appear in the
definitional section of the INA, we recently concluded, “the phrase ‘applicants for
admission’” is best understood as a “term of art” as it is defined in Section 1225(a)(1).
Lopez Garcia, 2026 WL 2661092, at *10. Section 1225(a)(1) provides:
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A[ noncitizen] present in the United States who has not been
admitted or who arrives in the United States (whether or not at
a designated port of arrival and including a[ noncitizen] who is
brought to the United States after having been interdicted in
international or United States waters) shall be deemed for
purposes of this chapter an applicant for admission.
8 U.S.C. § 1225(a)(1).
Thus, Section 1225(a)(1) provides two categories of applicants for admission: (1) a
noncitizen “present in the United States who has not been admitted;” and (2) a noncitizen
“who arrives in the United States.” 3 See Dep’t of Homeland Sec. v. Thuraissigiam, 591
U.S. 103, 109 (2020) (quoting 8 U.S.C. § 1225(a)(1)). Neither category applies to an
adjustment of status applicant like Petitioner because: (1) Petitioner was previously
admitted into the United States; and (2) Petitioner resides within the United States and is
not applying for admission after crossing the border. Consequently, pursuant to our reading
of the INA in Lopez Garcia, previously admitted adjustment of status applicants like
Petitioner are not “applicants for admission” as it is statutorily defined.
Under the regulatory provisions governing burdens of proof in removal proceedings,
the clearly and beyond doubt standard applies only to “arriving [noncitizens]” and
“[noncitizens] present in the United States without being admitted or paroled.” 8 C.F.R.
§ 1240.8(b)–(c). These two categories mirror the two categories of applicants for
admission found in Section 1225(a)(1). And because Petitioner does not fall under either
category of applicants for admission, her burden of proof in removal proceedings is not
3
A noncitizen “‘arrives in the United States’ only when he ‘crosses the border.’”
Mullin v. Al Otro Lado, 609 U.S. 258, 268 (2026).
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clearly and beyond doubt. Rather, because she is seeking relief from removal in the form
of adjustment of status, Petitioner is required to prove she satisfies all of the applicable
eligibility requirements, including admissibility, by a preponderance of the evidence. Id.
at § 1240.8(d)
In sum, because Petitioner is not seeking admission into the United States and is not
an applicant for admission, Section 1255(a)’s admissibility requirement is best read to
require proof from Petitioner that she “possess[es] the qualifications labeled
‘admissibility.’” Aremu, 450 F.3d at 582. In other words, in the case of Petitioner who
was already admitted and is applying for adjustment of status, proving that she is
“admissible to the United States for permanent residence” is accomplished by a present
showing that she is not inadmissible under Section 1182. And because she is not an
applicant for admission, her burden of proof in making that showing is a preponderance of
the evidence.
C.
Dicta in Dakura
But, the Government argues that we are bound by Dakura to uphold the BIA’s
practice of assimilating adjustment of status applicants to the position of applicants for
admission seeking entry into the United States at the border and, concomitantly, the BIA’s
use of the clearly and beyond doubt standard. We disagree. Our statement on the
applicable burden of proof in Dakura was dicta.
Dictum is a “statement in a judicial opinion that could have been deleted without
seriously impairing the analytical foundations of the holding.” United States v. Horsley,
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105 F.4th 193, 212 (4th Cir. 2024). That is because the statement, “being peripheral, may
not have received the full and careful consideration of the court that uttered it.” Payne v.
Taslimi, 998 F.3d 648, 654–55 (4th Cir. 2021). However, “[i]f necessary to the outcome,
a precedent’s reasoning must be followed; otherwise, we are not so bound.” Id. (quoting
Taslimi, 998 F.3d at 654–55).
First and foremost, the burden of proof was not at issue in Dakura. Rather, the
overarching issue was “whether a[ noncitizen] who falsely claims citizenship on [an
employment eligibility form] is thereby rendered inadmissible pursuant to the false claim
bar.” Dakura v. Holder, 772 F.3d 994, 998 (4th Cir. 2014). In Dakura, at the outset of our
analysis, we stated as follows:
The INA requires that, in order for [a noncitizen] to adjust his
status to that of a lawful permanent resident, he must be
admissible. See 8 U.S.C. § 1255(a). The [noncitizen] bears the
burden of proving that he “clearly and beyond doubt . . . is not
inadmissible under [8 U.S.C. §] 1182.” Id. § 1229a(c)(2)(A);
see also Hashmi v. Mukasey, 533 F.3d 700, 702 (8th Cir. 2008)
(noting that [a noncitizen] applying for adjustment of status “is
in a similar position to [a noncitizen] seeking entry into the
United States,” and therefore shoulders the burden of
establishing admissibility).
Id.
Critically, the noncitizen in Dakura “[did] not dispute[]” that he previously claimed
to be a United States citizen on the employment eligibility form. 772 F.3d at 1000. In fact,
the noncitizen testified during removal proceedings that he claimed United States
citizenship and never disputed this factual finding “to either the BIA or in this petition.”
Id. Thus, in Dakura, the noncitizen argued only that the false claim bar did not apply to
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him because: (1) he used another person’s identity when claiming citizenship; (2) his
employment was not an immigration benefit because all of his wages were paid to a bank
account he did not own or have access to; and (3) he claimed citizenship while acting under
duress. Id. at 1000–01. As a result, we neither analyzed the weight of the evidence against
the noncitizen on appeal nor did we analyze whether the noncitizen met his burden to prove
he was admissible clearly and beyond doubt because it was not “necessary to the outcome.”
Payne, 998 F.3d at 654–55.
Dakura held only that the false claim bar forms a legal basis for rendering applicants
for adjustment of status inadmissible -- even if the noncitizen used a different identity, did
not receive payment for the employment they gained, or acted under duress when claiming
citizenship. Beyond that, given that the noncitizen’s claim of being a United States citizen
was undisputed in Dakura, the standard of proof would have been satisfied even if the
burden was a preponderance of the evidence. Dakura, 772 F.3d at 1001. This again
underscores the point that the burden of proof was not “necessary to the outcome” in
Dakura. Payne, 998 F.3d at 654–55.
Therefore, we reject the Government’s argument that we are bound by Dakura to
uphold the BIA’s interpretation that adjustment of status applicants are assimilated to the
position of applicants for admission and must prove admissibility clearly and beyond
doubt.
IV.
Because the best reading of the relevant statutory provisions is that adjustment of
status applicants must prove admissibility by a preponderance of the evidence, and our
18
USCA4 Appeal: 22-2114 Doc: 68 Filed: 11/02/2026 Pg: 19 of 19
statement of the applicable burden of proof in Dakura was dicta, we conclude that the IJ
and BIA erred in requiring Petitioner to prove admissibility clearly and beyond doubt. The
Petition for Review is
GRANTED.
19