United States Court of Appeals
                       For the First Circuit

No. 24-1240

LECY FREDERICO ROSA; M.E.F.; MARISTELA GOMES-DE SOUZA FREDERICO,

                            Petitioners,

                                 v.

                         PAMELA J. BONDI,*
                  UNITED STATES ATTORNEY GENERAL,

                            Respondent.


                 PETITION FOR REVIEW OF AN ORDER OF
                  THE BOARD OF IMMIGRATION APPEALS


                               Before

                     Montecalvo and Kayatta,**
                          Circuit Judges.


       Annelise M. J. de Araujo and Stefanie Fisher-Pinkert, with
whom    Araujo & Fisher, LLC, was on brief, for petitioners.

     Gregory A. Pennington, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
with whom Brian M. Boynton, Principal Deputy Assistant Attorney
General, Civil Division, Nancy E. Friedman, Senior Litigation
Counsel, Office of Immigration Litigation, and Justin Markel,


       *Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Pamela J. Bondi has been substituted for former Attorney General
Merrick B. Garland as the respondent.
     **  Judge Selya heard oral argument in this case and
participated in the initial semble thereafter.     His death on
February 22, 2025, ended his involvement in this case.       The
remaining two panelists issued this opinion pursuant to

(d).
Senior Litigation Counsel, Office of Immigration Litigation, were
on brief, for respondent.


                          July 11, 2025
              PER CURIAM.     This is a petition for judicial review of

a final order of the Board of Immigration Appeals (BIA), which

affirmed a denial of a motion to terminate removal proceedings.

Concluding, as we do, that the agency applied an incorrect standard

of   proof,    we   remand    to   the   agency   for   further   proceedings

consistent with this opinion.

                                         I

              We briefly rehearse the relevant facts and travel of the

case.     The lead petitioner, Lecy Frederico Rosa, his wife and

co-petitioner, Maristela Gomes-De Souza Frederico, and their minor

child, M.E.F., entered the United States without inspection on or

about January 27, 2022, near El Paso, Texas.1 They soon encountered

Customs and Border Patrol (CBP) agents and were formally placed in

removal proceedings by notices to appear (NTAs) dated February 3,

2022.     The NTAs alleged that the petitioners were citizens of

Brazil and charged that they were removable as aliens present in

the United States without having been admitted or paroled.                See

(a)(6)(A)(i); see also 

 (defining an

"alien" under U.S. law as "any person not a citizen or national of

the United States").         The petitioners denied these charges.




      1For ease of reading, we sometimes refer to Rosa as if he
were the sole petitioner.   Our decision, of course, is binding
upon his co-petitioners as well.


                                     - 3 -
               At a hearing on February 1, 2023, an immigration judge

(IJ) ordered the Department of Homeland Security (DHS) to submit

evidence of the petitioners' alienage, that is, evidence that the

petitioners were aliens under U.S. law. In response, DHS proffered

an "EARM Summary" for each petitioner.2

               Each   such    summary    contained   information     about    a

particular petitioner, including his or her name, date of birth,

A-number, physical description, location and date of the encounter

with CBP, familial relationships, and occupation.               Notably, the

EARM Summary for each petitioner stated that his or her country of

citizenship was Brazil.        Every EARM Summary also included an I-213

section that contained information in narrative form about the

petitioner's encounter with CBP.

               On March 14, 2023, the petitioners moved to terminate

their removal proceedings.         They asserted that DHS had failed to

carry    its    burden   of   establishing      alienage   because   the   EARM

Summaries did not constitute sufficient or reliable evidence.

Specifically, the petitioners asserted that the EARM Summaries




     2 EARM is an acronym (standing for the ENFORCE Alien Removal
Module) describing a software that is a part of DHS's Enforcement
Integrated Database. That database, in turn, is a repository of
information for use in law enforcement and homeland security
applications.   See U.S. Dep't of Homeland Sec., Privacy Impact
Assessment Update for the Enforcement Integrated Database (EID)
(2018), https://perma.cc/6UD3-Z8PN.


                                        - 4 -
lacked   certain   pertinent     information   and   contained     material

inaccuracies.

          For example, the EARM Summaries did not contain names of

the CBP and DHS agents involved in the encounters (including

encounter event supervisors).        So, too, those Summaries omitted

any information about the two adult petitioners' parentage, their

parents' nationalities, and the towns where they were alleged to

have lived prior to entering the United States.          Additionally, the

EARM Summaries included generic language in the I-213 narrative

section without identifying whether the statements applied to the

petitioners.3      The   petitioners   also    alleged    that    the   lead

petitioner's    EARM   Summary   incorrectly   referred      to   him   using

feminine pronouns.

          There was more.        The petitioners noted that the EARM

Summaries stated that they were fluent in Portuguese.             Each EARM

Summary made clear, however, that the administrative warnings were

provided in Spanish.         The documents nowhere indicated that a

Portuguese     interpreter     participated    in    their    preparation.

Finally, the narratives within the EARM Summaries were dated a

week after the date of the alleged encounter with CBP.             All that




     3 Those statements included representations that "If child is
14 and over, the child signed the forms in the presence of the
parent" and "Juveniles the age of 13 and below were enrolled into
e3 only due to their age." They did not specify whether any such
juvenile was involved in a particular encounter.


                                   - 5 -
being said, the forms state that petitioners are citizens of

Brazil,    and     petitioners     offer    no   direct    rebuttal    to    those

statements.       Rather, they contend that the errors to which they

point render all statements in the form so unreliable as to be

incapable of proving alienage.

            The IJ denied the petitioners' motion to terminate their

removal proceedings.       See 

 (allowing immigration

judges to terminate proceedings).            Relying on the EARM Summaries,

the IJ determined that DHS had carried its burden of establishing

alienage by "clear and convincing" evidence.                 An order for the

removal of all three petitioners followed.

            The petitioners appealed to the BIA.               They maintained

that the appropriate degree of proof required to establish alienage

was "clear, unequivocal, and convincing evidence."              The IJ had not

applied this standard but, rather, had required DHS to show

alienage    only    by    "clear   and     convincing     evidence."        In   the

petitioners' view, the EARM Summaries did not clear this bar.

            The     BIA   rejected    the    petitioners'     arguments.          It

concluded that there was no difference between the two standards

and that those standards -- "clear and convincing evidence" and

"clear, unequivocal, and convincing evidence" -- had identical

meanings.        It further concluded that the EARM Summaries were

sufficiently reliable to satisfy this evidentiary standard.                  Based

on these findings, the BIA denied the petitioners' appeal.


                                      - 6 -
               This timely petition for judicial review ensued.

                                           II

               "Where, as here, the BIA's decision rests primarily on

the IJ's decision, we review the two decisions as a unit."                       Garcia

Oliva v. Garland, 

 (1st Cir. 2024).                    Because that is

the posture in which this case arises, we sometimes refer to the

IJ and the BIA jointly as "the agency."

               We review conclusions of law, including determining the

applicable burden of proof, de novo.                        See Vargas-Salazar        v.

Garland, 

 (1st Cir. 2024); see also Est. of

Abraham v. Comm'r of Internal Revenue, 

 (1st Cir.

2005) (describing the burden of proof as a question of law),

amended per curiam, 

 (1st Cir. 2005).                           Conversely,

"[w]e        review     'factual       findings . . . under           the     familiar

substantial evidence standard.'"                Loja-Paguay v. Barr, 

 (1st Cir. 2019) (cleaned up) (quoting Rivas-Mira v. Holder,

 (1st Cir. 2009)).                 This standard directs that, as

long    as    the     agency's   factual    determination       is    "supported      by

reasonable, substantial, and probative evidence on the record

considered as a whole," we must accept it.                      Mazariegos-Paiz v.

Holder,      

    (1st     Cir.    2013)      (quoting     INS   v.

Elias-Zacarias, 

 (1992)).

               In removal proceedings, DHS "need only establish the

respondent's          identity   and    alienage       to   meet     its    burden    on


                                         - 7 -
deportation."     Navarro-Chalan v. Ashcroft, 

 (1st

Cir. 2004); see 

(c).          "The burden then shifts to

the respondent . . . to defeat deportation."             Id.; see 

(c).

                                      III

          It is undisputed that DHS had the burden of proof to

show that the petitioners were aliens as defined by the Immigration

and Nationality Act (INA).         See Immigration and Nationality Act of

1952, 

(a)(3), 

, 166 (codified

as amended at 

(a)(3)).              However, the petitioners

first argue that both the IJ and the BIA failed to require the DHS

to meet the proper standard of proof in fulfilling its burden.

          The petitioners construct this argument on the premise

that -- under Woodby v. INS, 

 (1966) -- the appropriate

degree of proof required for establishing alienage is "by clear,

unequivocal, and convincing evidence." 

. This standard,

they suggest, is not only distinct and apart from the "clear and

convincing"    standard     that    the   agency   applied   but     also    more

demanding.      For   the   reasons    that   follow,   we   agree    with   the

petitioners that the "clear, unequivocal, and convincing" standard

is distinct from the "clear and convincing" standard.                  We also

agree that the agency should have applied the former standard.




                                      - 8 -
                                    A

            Some background supplies a useful starting point for our

analysis.    The INA was first enacted in 1952.     See Immigration and

Nationality Act of 1952, 

 Stat. 163.                The

original version of the INA established the framework for removal

proceedings.     

   But at that time, the statute lacked standards

of review and burdens of proof for certain proceedings, including

"the degree of proof required at the administrative level in

deportation proceedings."      Woodby, 

.

            In Woodby, the Supreme Court closed this gap, holding

that "no deportation order may be entered unless it is found by

clear, unequivocal, and convincing evidence that the facts alleged

as grounds for deportation are true."        

.   Subsequently,

the INA was amended.      However, as the parties now seem to agree,

these amendments did not change the standard for proving alienage

in this proceeding.

                                    B

            In its petition for rehearing, the government agreed

that Woodby provides the standard for determination of alienage,

whether     an   individual   is   charged   with   inadmissibility   or

deportability.4    We agree that Woodby provides the degree of proof


     4 We initially issued our opinion in this case on March 13,
2025.   Subsequently, the government filed a petition for panel
rehearing.   That petition changed course from the government's
original argument; although the government previously argued for


                                   - 9 -
required   to    establish    alienage      for     individuals     charged     with

inadmissibility and need not reach the issue as to individuals

charged with deportability.           Consequently, we conclude that DHS

had to present "clear, unequivocal, and convincing evidence" of

alienage here.

                                        C

           The     next     question,       then,     is    whether      the    term

"unequivocal" imparts a heightened meaning to the degree of proof

required. In other words, does "clear, unequivocal, and convincing

evidence" mean something different (and presumably, more onerous)

than   "clear    and     convincing    evidence"?          We    agree   with    the

petitioners that it does.

           When addressing this question, we do not write on a

pristine page.         In Addington v. Texas, 

 (1979), the

Supreme Court differentiated between evidence that is "clear and

convincing"      and    evidence   that     is    "clear,       unequivocal,     and

convincing."      See 

.        The Court asserted that "[t]he

term 'unequivocal,' taken by itself, means proof that admits of no

doubt, a burden approximating, if not exceeding, that used in

criminal cases."        

.     In furtherance of this point, the



this court to find that the "clear and convincing evidence"
standard applied, it now argues that this circuit's case law binds
us to the "clear, unequivocal, and convincing evidence" standard.
In light of the government's about-face, we now withdraw our
previous opinion and reissue this opinion to provide some clarity.


                                      - 10 -
Court explained that it "has used the 'clear, unequivocal[,] and

convincing' standard of proof to protect particularly important

individual interests in various civil cases" and specifically

cited to cases involving deportation and removal as examples of

implicating these particularly important interests.               

.

          The    statute    sometimes    uses    "clear     and    convincing

evidence," 8 U.S.C. § 1229a(c)(3) (burden of proof in removal

proceedings for deportable aliens), and in other sections "clear,

unequivocal[,] and convincing evidence," 8 U.S.C. § 1229a(b)(5)(A)

(burden of proof that written notice of removal hearing was

provided for in absentia order).           "A well-established canon of

construction requires that courts give all language in a statute

operative effect."   Morales v. Sociedad Española de Auxilio Mutuo

y Beneficencia, 

 (1st Cir. 2008).          Thus, as used in

the statute, the word "unequivocal" likely adds something to the

government's burden.

          It is true that because of Congress's silence on the

particular issue before us, we are ultimately interpreting not the

statute but, rather, a judicial standard mandated by Woodby.              This

might   ordinarily   free    us   from     the   precepts    of     statutory

construction.    See Mondaca-Vega v. Lynch, 

 (9th

Cir. 2015).     But we must assume that Congress was aware of and

considered the "clear, unequivocal, and convincing" burden in

removal proceedings articulated in Woodby when it amended the INA.


                                  - 11 -
See Sepulveda v. United States, 

 (1st Cir. 2003)

("[I]n the ordinary case, 'Congress expects its statutes to be

read   in     conformity   with   [the    Supreme]     Court's   precedents.'"

(quoting Clay v. United States, 

 (2003))).                  We

are, therefore, duty-bound to conclude that "clear and convincing

evidence" conveys a different meaning than "clear, unequivocal,

and convincing evidence."             Simply put, the former requires a

lessened degree of proof.

              The Sixth Circuit has come to a similar conclusion in

the context of inadmissible aliens.             In Ward v. Holder, 

    (6th    Cir.   2013),   that     court   held    that   "[t]he   'clear,

unequivocal, and convincing standard' is a more demanding degree

of proof than the 'clear and convincing' standard."                  See 

 (interpreting Addington, 

).                We think that

the Ward court's reading of Addington is persuasive.

              We recognize that the Ninth Circuit has come to a

different conclusion in Mondaca-Vega, 

, as relied upon

by the agency in its decisions and the government in this appeal.

In our view, Mondaca-Vega rests on a misreading of Addington:

notwithstanding Addington's explicit recognition of the import of

the word "unequivocal," the Mondaca-Vega court cited Addington for

the    proposition     that    "[t]he     Supreme      Court   has   repeatedly

emphasized that there are three burdens of proof."               Mondaca-Vega,

.       It described these three burdens as limited to


                                      - 12 -
a preponderance of the evidence, clear and convincing evidence,

and beyond a reasonable doubt.       See 

   It proceeded to hold that

"[t]hree is enough" and to reject a separate "clear, unequivocal,

and convincing" standard.     

    Like the dissent in that case, we

do not read the Supreme Court's precedent to "suggest[] that

standards of proof are limited to these three general levels."

 (Smith, J., dissenting in part).            Instead, we take

Addington at face value and hold that the "clear, unequivocal, and

convincing" standard has its own meaning.

                                     IV

          The parties quarrel over whether the EARM Summaries,

without more, are sufficient and reliable proof of alienage under

the "clear, unequivocal, and convincing" standard.             Because the

agency applied the wrong burden of proof and therefore did not

make a factual finding one way or the other, the agency is not

entitled to review under the deferential substantial evidence

standard on that issue.     And indeed, as the parties acknowledged

at oral argument, the use of the EARM Summaries to show alienage

in immigration hearings is relatively new.         We therefore take no

stance on whether DHS satisfied the "clear, unequivocal, and

convincing" standard by presenting the immigration court with EARM

Summaries.     We   leave   that    issue   for   resolution    in   future

proceedings.




                                   - 13 -
                                   V

          We need go no further.       For the reasons stated above, we

grant the petition for judicial review, vacate the order complained

of, and remand to the BIA for further proceedings consistent with

this opinion.



So Ordered.




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