United States Court of Appeals
                     For the First Circuit

No. 24-1695

   MARCOS DA SILVA BORGES; ELIANE MARIA SILVA TEIXEIRA BORGES;
                      A.S.B.; and D.L.S.B.,

                          Petitioners,

                               v.

               PAMELA J. BONDI, Attorney General,*

                           Respondent.


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


                             Before

                  Rikelman, Howard, and Aframe,
                         Circuit Judges.


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

     Allison Frayer, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, with whom Brian Boynton,
Principal Deputy Assistant Attorney General, Civil Division, and
Sarah A. Byrd, Senior Litigation Counsel, Office of Immigration
Litigation, were on brief, for respondent.


                          July 18, 2025



     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Pamela J. Bondi is automatically substituted for
former Attorney General Merrick B. Garland as Respondent.
            RIKELMAN, Circuit Judge.        In this immigration case,

Marcos Da Silva Borges and his family claim that the Immigration

Judge (IJ) applied the incorrect standard of proof during their

removal proceedings.      The Borges family members contend that,

because   they   were   charged   with    inadmissibility    rather   than

deportability, the government had the burden to prove that they

were noncitizens by "clear, unequivocal, and convincing" evidence,

which they claim is a higher standard than merely "clear and

convincing" evidence.      The family members also argue that the

government presented insufficient evidence to meet this higher

standard.    The Board of Immigration Appeals (BIA) denied their

appeal, and they petitioned our court for review.

            Our recent decision in Rosa v. Bondi, ___ F.4th ___,

 (1st Cir. Jul. 11, 2025), resolves this appeal and

requires us to rule in favor of the Borges family.          Rosa concerned

the same legal issues presented in this case and held that the

"clear, unequivocal, and convincing" standard applies in removal

proceedings of individuals charged with inadmissibility, and that

this standard imposes a higher burden of proof on the government

than the "clear and convincing" standard.           Because the agency

applied the incorrect legal standard in evaluating whether the

Borges family was removable, we grant the petition and remand to

the agency for further proceedings consistent with this opinion.




                                  - 2 -
                                 I. BACKGROUND

            The lead petitioner, Marcos Da Silva Borges, his wife

and co-petitioner, Eliane Maria Silva Teixeira Borges, and their

two young children, A.S.B. and D.L.S.B., entered the United States

in October 2021, near San Luis, Arizona.             At the time, A.S.B. was

seven years old and D.L.S.B. was two years old.

            An    immigration     officer      examined   the   Borges      family

members upon entry and, the next day, formally placed them into

removal proceedings by issuing notices to appear (NTAs).                    In the

NTAs, the government alleged that the family members were citizens

of Brazil     and charged       them as    inadmissible and      removable as

"alien[s] present in the United States without being admitted or

paroled" under section 212(a)(6)(A)(i) of the Immigration and

Nationality      Act   (INA).     See    INA   § 212(a)(6)(A)(i),       

(a)(6)(A)(i);        see    also      INA    § 101(a)(3),     

(a)(3) (defining the term "alien" as "any person not a

citizen or national of the United States").

            The Borges family appeared with counsel at a hearing

before the IJ in September 2022.          That same day, the Department of

Homeland Security (DHS) submitted to the IJ an Enforce Alien

Removal Module View Encounter Summary ("EARM summary") for each

family member as evidence of their alienage.               Each EARM summary

included information about the individual family member, including

his or her name, date of birth, A-number (a unique identification


                                    - 3 -
number assigned by DHS), physical characteristics, and alleged

citizenship.         Each EARM summary also included an "I-213 Narrative"

that described the family member's encounter with Customs and

Border Patrol.

            The Borges family denied all the factual allegations and

the charges of removability.               The family members also moved to

terminate the removal proceedings, claiming that the government

did not meet its burden to demonstrate that they were noncitizens

because the EARM summaries were "incoherent and notably fail[ed]

to reference any passport or other documentation to demonstrate

[their] alienage."            Specifically, they claimed that the EARM

summaries omitted the name of the officer who examined them, the

disposition of the examination, the signatures of both the border

patrol agent and examining officer, any mention of a foreign

passport or other identity document, and any information about

their   last    entry       into   the   United    States   and   their    place   of

permanent residence.

            The government did not file a written response to the

family's motion to terminate but did orally respond during a later

hearing with the IJ in November 2022.                 It argued that the EARM

summaries      did    not    require     officer   signatures,    did     list   each

individual's "country of origin" and entry date, and should be

accepted by the IJ because they are "printout[s] from a Government

database, which [are] inherently [] business record[s]."


                                          - 4 -
            The next day, the IJ denied the family's motion to

terminate the removal proceedings in a form order.    The IJ found

that the government "met . . . its burden of proving by clear and

convincing evidence that [the Borges family is] removable as

charged."     And, in January 2023, the IJ ordered the family's

removal after confirming during another hearing that they were not

seeking voluntary departure or any other form of relief from

removal.     In the removal order, the IJ explained that they were

"removable/inadmissible as charged in the Notice to Appear" based

on their "admissions and concessions."

            The Borges family appealed to the BIA.      The family

members claimed that the IJ clearly erred in finding them removable

based on their "admissions and concessions" when they, in fact,

denied the NTAs' allegations and charges and moved to terminate

the removal proceedings.    The BIA agreed and remanded to the IJ

for a "full decision" that "explains the evidentiary basis for

[its] decision to sustain the removal charge[s] [and] addresses

the merits of the [family's] motion to terminate."

            The IJ issued a new decision in October 2023.     After

concluding that the government had the burden to prove the family

members' alienage "by clear and convincing evidence," the IJ found

that the government satisfied its burden by submitting the EARM

summaries.    According to the IJ, the summaries were "sufficiently

detailed and there is nothing to indicate that the information


                               - 5 -
contained therein came from anyone other than the [Borges family

members]."       Based on these findings, the IJ again denied the

family's   motion       to   terminate    and   sustained   the   charges   of

removability under section 212(a)(6)(A)(i) of the INA.

           The Borges family appealed once more to the BIA, raising

two arguments.      First, the family contended that the IJ applied

the wrong standard of proof when it required the government to

prove alienage only by "clear and convincing" evidence rather than

by "clear, unequivocal, and convincing" evidence.                 Second, the

family argued that the government did not meet this higher standard

of proof because the EARM summaries were unreliable and omitted

key information. And the family emphasized that the EARM summaries

could not be authenticated because they lacked a signature from

the agent who prepared them.        They also highlighted that the forms

included only generic narratives.          For example, the family pointed

out that the EARM summary for their then-two-year-old child claimed

that the child "'indicated' that they understood [their] right [to

communicate with a Consular Officer] but declined to speak with

anyone at this time."

           The    BIA    rejected   the    family's   arguments    about    the

standard of proof and the unreliability of the EARM summaries and

dismissed the appeal in July 2024.              In doing so, it adopted and

affirmed the IJ's decision.              The BIA first found that the IJ

applied the correct evidentiary standard to evaluate alienage


                                     - 6 -
because   "clear   and    convincing"   and   "clear,   unequivocal,   and

convincing" were the same standard.        It also concluded that the IJ

did not clearly err in finding that the EARM summaries were

sufficiently reliable, such that the government had met its burden

to prove alienage. Finally, because the family had conceded proper

service of the NTAs and did not seek any forms of relief from

removal, the BIA found that the IJ correctly denied the motion to

terminate the removal proceedings.

           The Borges family filed a timely petition for review.

                          II. STANDARD OF REVIEW

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

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

"refer to the IJ and the BIA jointly as 'the agency.'"         Rosa, ___

F.4th ___, 

, at *2 (quoting Garcia Oliva v. Garland,

 (1st Cir. 2024)).           We review the agency's legal

conclusions, including determinations of the appropriate standard

of proof, de novo.       See 

   We review factual findings under the

substantial evidence standard, accepting the agency's factual

determinations if they are "supported by reasonable, substantial,

and probative evidence on the record considered as a whole."           

(quoting Mazariegos-Paiz v. Holder, 

 (1st Cir.

2013)).




                                   - 7 -
                                   III. DISCUSSION

              As we previewed above, the Borges family raises two

primary issues on appeal. First, the family claims that the agency

erred in failing to require the government to prove alienage by

"clear,      unequivocal,     and    convincing"   evidence.         Further,   the

family contends that the "clear, unequivocal, and convincing"

standard is more demanding than the "clear and convincing" standard

that the agency applied.              Second, the family argues that the

government could not rely on the EARM summaries to satisfy the

applicable standard.

              We agree with the Borges family that the agency should

have applied the "clear, unequivocal, and convincing" standard and

that       this    standard   is    more    demanding   than   the    "clear    and

convincing" standard.          See Rosa, ___ F.4th ___, 

,

at *3-4.          Thus, we remand to the agency so that it can determine

in the first instance whether the EARM summaries meet that higher

standard.          For that reason, we do not consider the family's

argument about the unreliability of the summaries.

              In Rosa, we reviewed similar arguments and reached two

critical holdings, both of which support the family's contentions.1



       We initially issued the opinion in Rosa on March 13, 2025.
       1

Subsequently, the government filed a petition for panel rehearing.
Although the government had "previously argued [in Rosa] that the
'clear and convincing evidence' standard applied," it shifted its
position in its petition for panel rehearing to "argue[] that this



                                           - 8 -
First,    we    concluded       that   the    government       has      the    burden      to

demonstrate        the     alienage        of        individuals        charged          with

inadmissibility,         like    the   Borges        family   members,        by    "clear,

unequivocal, and convincing" evidence.                  See id. at *3.         To do so,

we relied on the Supreme Court's decision in Woodby v. Immigration

& Naturalization Service, which held that the government must

"establish       the     facts      supporting         deportability          by     clear,

unequivocal, and convincing evidence."                  

 (1966);

see    Rosa,    ___    F.4th    ___,   

,     at    *3;       see   also

Spyropoulos v. Immigr. & Naturalization Serv., 

(1st    Cir.    1978)    (in    a   case     concerning       deportation          based   on

excludability/admissibility, citing Woodby as imposing "clear,

unequivocal, and convincing" standard of proof on the government).

               Second, we also held in Rosa that "clear, unequivocal,

and convincing" was a more demanding standard than "clear and

convincing."       See Rosa, ___ F.4th ___, 

, at *3-4.

We     quoted    the     Supreme    Court's      assertion       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."          Id. at *3 (alteration in original) (quoting



circuit's case law" required the application of the "clear,
unequivocal, and convincing evidence" standard. Rosa, ___ F.4th
___, 

, at *3 n.4. In response, we issued a modified
opinion in Rosa on July 11, 2025. We refer only to the reissued
opinion here.


                                        - 9 -
Addington v. Texas, 

 (1979)); see also, e.g.,

Matter of Patel, 

 (BIA 1988) (also citing

Addington to explain that "[t]he clear and convincing standard

imposes a lower burden than the clear, unequivocal, and convincing

standard . . . because it does not require that the evidence be

unequivocal or of such a quality as to dispel all doubt.").

Looking to the text of the INA, we further noted that the statute

imposes   a    "clear   and   convincing"   standard   of   proof   in   some

situations and a "clear, unequivocal[,] and convincing" standard

in others, an indication that "the word 'unequivocal' likely adds

something to the government's burden."         Rosa, ___ F.4th ___, 

, at *4 (citing, as examples, 8 U.S.C. § 1229a(c)(3) and

8 U.S.C. § 1229a(b)(5)(A), respectively).          Finally, we reasoned

that we must assume that Congress was aware of Supreme Court case

law when it amended the INA.       See id.    Thus, we held that we were

"duty-bound to conclude" that "clear, unequivocal, and convincing"

was a higher standard of proof than "clear and convincing."              Id.

Based on those two holdings, we granted the petition for review in

Rosa, vacated the agency's order, and remanded to the agency for

further proceedings to determine whether the government had met

its burden under the correct standard.         See id. at *4-5.

              The government has failed to provide any basis for

distinguishing this case from Rosa.          Although Rosa was initially

decided in mid-March 2025, about five weeks after oral argument in


                                   - 10 -
this    case,    and   then   modified    in   mid-July   2025   after   panel

rehearing, the government did not submit a 28(j) letter contending

that we should not apply Rosa.             And in its briefing to us, it

presented only one argument that we did not consider in Rosa: it

claimed that the Supreme Court equated the two standards of proof

at issue here in California ex rel. Cooper v. Mitchell Bros.' Santa

Ana Theater, 

 (1981).           But the Court did no such thing

in Cooper, which concerned the standard of proof required by the

First Amendment for obscenity claims.               See 

.         The

government relies on a single sentence and footnote in Cooper, in

which the Court        stated   that "[t]hree standards of proof are

generally recognized" and noted that both "clear and convincing"

and    "clear,   unequivocal,    and     convincing"   represent   "a    higher

probability than is required by the preponderance-of-the-evidence

standard."       

 at 93 & n.6 (emphasis added).          This statement,

however, does not undermine (let alone implicitly repudiate) the

Supreme Court's determination in Addington, as described above,

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."        

.    After all, Cooper cites

Addington with approval.        See Cooper, 

.        And, as we

said in Rosa, we are bound to take Addington "at face value" and

treat the "clear, unequivocal, and convincing" standard as more




                                    - 11 -
demanding than the "clear and convincing" standard.    Rosa, ___

F.4th ___, 

, at *4.

         Thus, Rosa controls here.

                         IV. CONCLUSION

         For all these reasons, we grant the petition, vacate the

BIA's order, and remand to the agency for further proceedings

consistent with this opinion.



                 - Concurring Opinion Follows -




                                - 12 -
           HOWARD, Circuit Judge, concurring.     I join the panel

opinion, as I agree that we are bound by our recent decision in

Rosa v. Bondi, ___ F.4th ___, 

 (1st Cir. Jul. 11,

2025).    But I have doubts about the correctness and wisdom of the

direction that our law is taking in its identification of the

appropriate burden of proof in cases such as this one.

           The   Immigration   and   Nationalization   Act   ("INA")

recognizes two categories of noncitizens (or "aliens" as termed in

the statute)2 who may be subject to removal proceedings: those who

have not been admitted3 into the United States and are found to be

"inadmissible" pursuant to 

, and those who have

been admitted and are found to be "deportable" under 

.   See 8 U.S.C. § 1229a(e)(2).   While the INA provides that

"the [government] has the burden of establishing by clear and

convincing evidence that, in the case of an alien who has been

admitted to the United States, the alien is deportable," 8 U.S.C.

§ 1229a(c)(3)(A), there is no comparable provision establishing

the government's burden in proving the alienage of a person charged




     2 As defined by the INA, "alien" refers to "any person not a
citizen or a national of the United States."            

(a)(1).
     3 The term "admitted" means "the lawful entry of the alien
into the United States after inspection and authorization by an
immigration officer." 

(a)(13)(A).

                               - 13 -
with inadmissibility.4           See Rosa, ___    F.4th ___, 

,

at *3.       The Supreme Court's decision in Woodby v. INS, 

 (1966), fills this gap and requires that alienage must be

proven by "clear, unequivocal, and convincing evidence."                      As I

explain further below, however, the Supreme Court's cases suggest

that       Woodby's   "clear,    unequivocal,    and   convincing"   burden     is

substantively equivalent to the "clear and convincing" burden that

we commonly encounter in immigration and other civil contexts.

But to hold that the former imposes a higher burden on the

government than the latter creates a questionable and likely

perverse disparity between the protections afforded potentially

deportable aliens and those provided to individuals charged with

inadmissibility.

                                            I.

               A review of several earlier Supreme Court decisions

provides context for how the Woodby Court understood the "clear,

unequivocal, and convincing" standard of proof.                The Court first

imposed       this    standard   in   the    immigration   context   in   a   case

involving denaturalization.             See Schneiderman v. United States,

 (1943).             In Schneiderman, the Court considered

whether the petitioner's naturalization had been properly revoked


       Once the government proves that the individual charged is
       4

an alien, the burden shifts to the alien to prove that "he or she
is clearly and beyond a doubt entitled to be admitted to the United
States and is not inadmissible as charged." 

.

                                       - 14 -
twelve years after it was first granted.           

.

Analogizing to the standard applicable in the case of a public

grant of land, the Court held that "[t]o set aside such a grant

[of citizenship] the evidence must be 'clear, unequivocal and

convincing' -- 'it cannot be done upon a bare preponderance of

evidence which leaves the issue in doubt."          

 at 125 (quoting

Maxwell Land-Grant Case, 

 (1887) (concerning

standard of proof to declare void a patent granting tract of

land)).5   But the Schneiderman Court was not wed to this exact turn

of phrase in defining the appropriate standard of proof.        In fact,

throughout   its   opinion   the   Court    repeatedly   articulated   the

government's burden without using the word "unequivocal" at all,

variably describing the burden as requiring "evidence of a clear

and convincing character," id. at 123; "the clearest sort of

justification and proof," id.; "more than a bare preponderance of

the evidence," id. at 125; and "such a preponderance of the

evidence that the issue is not in doubt," id. at 158.6


     5 In the same breath, the Schneiderman Court also cited to
United States v. Rovin, 

 (E.D. Mich. 1926).        See
Schneiderman, 

.    Significantly, Rovin explained
that to set aside a grant of citizenship, the government must
establish "by clear and convincing evidence" that the certificate
of citizenship was obtained by fraud. 

.
     6 In cases after Maxwell Land-Grant Case, the Supreme Court
was similarly varied in the language that it used to describe the
proof necessary to revoke land patents, often omitting the word
"unequivocal" altogether.     See, e.g., Wright-Blodgett Co. v.
United States, 

 (1915) (citing Maxwell Land-Grant


                                   - 15 -
             At bottom, no matter the precise verbiage used by the

Court, Schneiderman made plain that "when the rights are precious

and when they are conferred by solemn adjudication," they "should

not    lightly   be    revoked."      Id.     at   125.      In    such    cases,   a

"preponderance of the evidence which leaves the issue in doubt"

would not do.      See id.

             Two decades after Schneiderman, the Court extended the

Schneiderman standard to all deportation proceedings.                  See Woodby,

-86 & n.16. Confronted with establishing the degree

of proof required of the government, the Woodby Court ruled out

the reasonable-doubt standard, because "a deportation proceeding

is not a criminal prosecution."          See 

.          Still, the Court

found it inappropriate to permit removal from the country based on

a mere preponderance of the evidence.              See 

   Instead, as in the

case    of   a   denaturalization,      the    Court      applied    the    "clear,

unequivocal,     and    convincing"    standard      of   proof     that    was   "no




Case for proposition that government must prove its case by "proof
which produces conviction" while also referring to standard as "by
proof of a clear and cogent character"); United States v. Am. Bell
Tel. Co., 

 (1897) (affirming that Maxwell
Land-Grant Case requires proof that is "clear, unequivocal, and
convincing" but later characterizing standard as requiring that
fraud must be proven by "clear, convincing, and satisfactory"
evidence); United States v. Iron Silver Mining Co., 

 (1888) (stating that patent for land may only be set aside "by
clear and convincing proof" of fraud).

                                      - 16 -
stranger to the civil law."7         

    "No less a burden of proof is

appropriate in deportation proceedings," the Court reasoned, since

similar    or    greater     hardships      are     present   in     deportation

proceedings as in denaturalization proceedings.                     Id. at 286.

Unlike denaturalization, the Court explained, deportation often

results in immediate expulsion and "many resident aliens have lived

in this country longer and established stronger family, social,

and economic ties here than some who have become naturalized

citizens."      Id.

           It is true that Woodby and Schneiderman did not directly

address whether the phrases "clear and convincing" and "clear,

unequivocal,     and   convincing"    are     synonymous.      However,    seven

months prior to Woodby, the Supreme Court had done just that,

clarifying the "clear, unequivocal, and convincing" burden by

reciting   the    familiar    definition       of   "clear    and    convincing"


     7 The Court acknowledged that the "clear, unequivocal, and
convincing" standard "or an even higher one" was routinely used in
civil cases involving issues of fraud, lost wills, and oral
contracts to make bequests. Woodby, 

 n.18 (citing
9 Wigmore, Evidence § 2498 (3d ed. 1940)). Yet by the time Woodby
was decided, courts also imposed the "clear and convincing"
standard of proof -- sans the term "unequivocal" -- in fraud
cases, thereby further suggesting that the Woodby Court viewed the
standards to be equivalent. See, e.g., Van Weel v. Winston, 

 (1885) (noting that proof of fraud in making a
contract must be "clear and convincing"); Iron Silver Mining Co.,

 (holding that government must provide "clear and
convincing proof" that patent was obtained fraudulently); see also
9 Wigmore, Evidence § 2498 (Chadbourn rev. 1981) (collecting Sixth
and Second Circuit cases requiring "clear and convincing" evidence
of fraud).

                                     - 17 -
evidence.    See United Mine Workers of Am. v. Gibbs, 

 (1966).     Interpreting Section 6 of the Norris-LaGuardia Act,

, the Court found the statute's "clear proof"

burden, while undefined, must "signify a meaning like that commonly

accorded such similar phrases such as 'clear, unequivocal, and

convincing proof.'"     Id. at 735, 737.    "Under this standard," the

Court elaborated, the burdened party "is not required to satisfy

the criminal standard of reasonable doubt" but must "persuade by

a substantial margin, to come forward with 'more than a bare

preponderance of the evidence to prevail.'"         Id. at 737 (quoting

Schneiderman,    

).    Against   the     backdrop   of

Schneiderman's variable parlance, this contemporaneous definition,

along with Woodby's comparison of this standard to other civil

actions'    intermediate   standards   of   proof   shortly   thereafter,

suggests that the Court employed these two articulations of the

intermediate standard of proof interchangeably.        Indeed, the Court

had before and continued to freely reword the standard from case

to case throughout the twentieth century.        Compare Baumgartner v.

United States, 

 (1944) (addressing whether the

government had presented "clear, unequivocal, and convincing"

evidence that petitioner fraudulently procured certificate of

citizenship), with Pullman-Standard v. Swint, 

, 286

n.16   (1982)   (describing   Baumgartner   as   involving    question   of

"whether or not the findings of the two lower courts satisfied the

                                   - 18 -
clear and convincing standard of proof necessary to sustain a

denaturalization decree" (emphasis added)).

          In Rosa, we concluded that Addington v. Texas, 

 (1979), mandates the opposite conclusion.            Rosa, ___ F.4th

___, 

, at *3-4. The question presented in Addington

was what degree of proof the Fourteenth Amendment requires to

involuntarily commit an individual to a state mental hospital.

.    In summarizing the "three standards or levels

of proof," the Court recognized that the "intermediate standard,

which employs some combination of the words 'clear,' 'cogent,'

'unequivocal,' and 'convincing,'" is appropriate in cases where

the interests at stake "are deemed to be more substantial than

mere loss of money."       

.       The Court specified that, in

particular, the "clear, unequivocal, and convincing" standard has

been   used   to     "protect   particularly       important   individual

interests,"   such    as    those     implicated    in   deportation   and

denaturalization proceedings.         

 (collecting cases).     It also

noted 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."        

 (footnote omitted).     On

that basis, the Court concluded that state courts are free but not

required to use the "unequivocal" standard of proof in civil

commitment cases, as "clear and convincing" proof is sufficient to

satisfy due process -- implicitly distinguishing the two.         See 

                                    - 19 -
              If Addington were the final word on this issue, I might

well agree that it suggests a departure by the Supreme Court from

the   cases     that   view    the   two    formulations    at    issue   here    as

synonymous.      But three years after Addington, the Supreme Court

made clear in Santosky v. Kramer, 

 (1982), that it

still viewed the two formulations as substantively equivalent.

Once again, the Court sought to determine the appropriate burden

of proof on the government -- this time for purposes of terminating

parental rights.       Santosky, 

.             In surveying how

states had answered this question, the Court found that many state

courts    had    imposed      standards     employing    varying    expressions,

including     "clear    and    convincing      proof,"   "clear,     cogent,     and

convincing      evidence,"      and,       significantly,   even     "clear      and

unequivocal" proof.        

 at 749 & n.3 (first quoting Ramsey Cnty.

Welfare Dep't v. Young (In re Rosenbloom), 

(Minn. 1978); then quoting In re Sego, 

 (1973)

(en banc); and then quoting DS v. Dep't of Pub. Assistance & Soc.

Servs. (In re X), 

 (Wyo. 1980)).                 But despite the

difference in phrasing used by each state, the Court cited all

these cases as examples of where states had "required proof by

'clear and unequivocal' evidence or its equivalent." 

 (emphasis

added).

              That the Supreme Court viewed these formulations of the

intermediate standard of proof as equivalent is also evident from

                                       - 20 -
its equating of their purposes.           As acknowledged above, it is not

unfair   to     conclude     that    Addington    distinguished   the   "clear,

unequivocal, and convincing" burden from other variants of the

intermediate standard on the basis that it is necessary to protect

"particularly important" interests.               See 

.     But

Santosky did not attempt to draw such a line, instead stating that

the "clear and convincing" burden protected the same interests.

.       The Court explained that:

               This Court has mandated an intermediate
               standard of proof -- "clear and convincing
               evidence" -- when the individual interests at
               stake in a state proceeding are           both
               "particularly     important"     and     "more
               substantial     than      mere     loss     of
               money." . . . [T]he Court has deemed this
               level of certainty necessary to preserve
               fundamental   fairness   in    a  variety   of
               government-initiated      proceedings     that
               threaten the individual involved with "a
               significant   deprivation    of  liberty"   or
               "stigma."

 (emphasis added) (quoting Addington, 

).

As examples of such "government-initiated proceedings" where the

clear and convincing standard is used, the Court pointed to the

civil commitment, deportation, and denaturalization proceedings at

issue in Addington, Woodby, and Schneiderman, respectively.                See

id. at 756-57; see also Cruzan v. Director, Mo. Dep't of Health,

 (1990) (reiterating Santosky's description of

the "clear and convincing evidence" burden of proof and explaining

that     the      standard     had     been      required   in    deportation,

                                       - 21 -
denaturalization, civil commitment, and termination of parental

rights proceedings).        In doing so, the Court plainly acknowledged

that the individual interests at stake in Woodby were dutifully

protected by the "clear and convincing" standard of proof.

            In my view, while Addington may have briefly raised the

possibility that the term "unequivocal" possesses some talismanic

properties    that    elevate   the    government's       burden     beyond    that

required by the "clear and convincing" standard, Santosky put any

notion of that distinction to rest.             It therefore comes as little

surprise that the Supreme Court has repeatedly used "clear and

convincing"    interchangeably         with     "clear,       unequivocal,      and

convincing" even after Addington.             See, e.g., E.M.D. Sales, Inc.

v. Carrera, 

 (2025) (citing Schneiderman                         for

proposition that "the Court has held that the government must

satisfy a clear-and-convincing-evidence standard in order to take

away a person's citizenship"); Rivera v. Minnich, 

 (1987) ("[A]s we have said in explanation of the need for clear

and   convincing     evidence   in    certain    proceedings,        'rights   once

confirmed should not be lightly revoked.'" (quoting Schneiderman,

)); INS v. Stevic, 

, 424 n.19 (1984)

(citing Woodby to note that "[t]he Board [of Immigration Appeals]

is,   of   course,    quite   familiar    with     the    clear-and-convincing

standard,    since    the   Government    is    held     to   that   standard    in

deportation proceedings"); Herman & MacLean v. Huddleston, 459

                                     - 22 -
U.S. 375, 389 (1983) (explaining that the Court has "required proof

by clear and convincing evidence where particularly important

individual interests or rights are at stake" and citing Santosky,

Addington, and Woodby as examples); Pullman–Standard, 

 n.16 (noting that "clear and convincing" was the "standard of

proof necessary to sustain a denaturalization decree").

          Semantically, this conclusion makes sense.      Addington

seemingly distinguished "unequivocal" as "proof that admits of no

doubt," 

, but I fail to see how this definition

meaningfully differs from what we have always understood the term

"clear" to mean in the "clear and convincing" burden of proof.

For example, we have previously observed that "'[c]lear' has been

defined as '[o]bvious beyond reasonable doubt,' and 'clear and

convincing proof' has been described as 'proof beyond a reasonable,

i.e., a well-founded doubt' or else as 'more than a preponderance

but less than is required in a criminal case.'"   Tatro v. Kervin,

 (1st Cir. 1994) (quoting Black's Law Dictionary 227

(5th ed. 1979)); see also Webster's Third International Dictionary

419 (1993) (defining "clear" as "having no doubt, uncertainty, or

confusion of mind"); Radio Corp. of Am. v. Radio Eng'g Lab'ys, 

 (1934) (interpreting various articulations of standard

of proof, including "clearest proof -- perhaps beyond reasonable

doubt," to mean "clear and cogent evidence" (first quoting Aus.

Mach. Co. v. Buckeye Traction Ditcher Co., 

 (6th

                              - 23 -
Cir.       1926))).   I   worry   that,   in   concluding   that   the   term

"unequivocal" alone engenders this heightened burden of proof, we

have effectively diminished the unadorned, but heretofore high,

"clear and convincing" standard to equate it to something closer

to the "dubious" preponderance of the evidence burden of proof.

Cf. Microsoft v. i4i LP, 

 (2011) (explaining

that preponderance of the evidence is too "dubious" a basis to

deem a patent invalid and therefore "clear and convincing" is the

proper standard); Schneiderman, 

 (rejecting use of

"bare preponderance of the evidence which leaves the issue in

doubt" (emphasis added) (quoting Maxwell Land-Grant Case, 

)).

               For these reasons, I do not think it was error for the

agency to have omitted the word "unequivocal" in its articulation

of the governing legal standard, so long as the evidence in the

record was sufficient to meet the "clear and convincing" burden of

proof.8



       To the extent that the INA is relevant to our understanding
       8

of "clear, unequivocal, and convincing evidence," I am not so
persuaded that the statute's imposition of "clear, unequivocal,
and convincing evidence" in some places and "clear and convincing"
in others requires Rosa's holding. See Rosa, ___ F.4th ___, 

, at *4 (citing 8 U.S.C. § 1229a(c)(3) and 8 U.S.C.
§ 1229a(b)(5)(A)).    As Rosa acknowledges, "we are ultimately
interpreting not the [INA] but, rather, a judicial standard
mandated by Woodby." Id. Additionally, given that we must assume
Congress was aware of Supreme Court precedent such as Santosky
when amending the INA in 1996, see id., we similarly should


                                    - 24 -
                                             II.

           Accepting that we as a panel are bound to conclude that

"clear   and   convincing"            imposes       a    lower     burden      then       "clear,

unequivocal,    and    convincing,"             I       add    just     a    few    additional

observations about the consequences of this holding.

           While      at    times        Congress         has      seen       fit    to     treat

inadmissible    aliens          and    deportable             aliens    differently,         this

statutory differential treatment is, as it should be, to the

advantage of potentially deportable aliens.                        See Vazquez Romero v.

Garland, 

 (9th Cir. 2021) ("Aliens who have been

lawfully admitted to the country generally receive more protection

under immigration law than aliens who are seeking admission to the

United   States.");        Barton      v.    Barr,       

    (2020)

(Sotomayor, J., dissenting) (explaining that "the grounds for

inadmissibility are broader than those for deportability" and that

the separate categories and procedures used for each categories of

noncitizens    tend        to     "treat[]          deportable          noncitizens          more

generously than inadmissible noncitizens").                            For example, while

the government bears the burden of proof in establishing that an

admitted alien is deportable by "clear and convincing" evidence,

see 8 U.S.C. § 1229a(c)(3)(A), the onus is on the alien charged

with inadmissibility to show that he or she "is clearly and beyond


conclude that Congress was aware the Court viewed the two variants
of the intermediate standard as imposing equivalent burdens.

                                            - 25 -
doubt entitled to be admitted and is not inadmissible," id.

§ 1229a(c)(2)(A).            It         is    therefore         paradoxical      to

conclude -- whether by our construction or by Congress's conscious

choice -- that the government now bears a lower burden in removing

a lawfully admitted noncitizen then it does in proving the alienage

of an individual who attempts to enter the United States without

any hint of authorization to be here beyond his own say-so.9

            "[I]n any given proceeding, the minimum standard of

proof tolerated by the due process requirement reflects not only

the weight of the private and public interests affected, but also

a    societal   judgment   about    how      the   risk    of   error   should   be

distributed between the litigants."                Santosky, 

.

It follows that the more important the individual interest at stake

is, the higher the burden of proof is required to deprive a person

of   that   interest.      See    

    (comparing       preponderance    of    the

evidence, which demonstrates "society's 'minimal concern with the

outcome'" of the case," with "stringency" of criminal standard



       In reissuing our opinion in Rosa, we limited our holding to
       9

Woodby's application to persons charged with inadmissibility,
leaving for another day the question of whether it similarly
governed the degree of proof required to establish alienage of a
person charged with deportability. See Rosa, ___ F.4th ___, 

, at *3.      But regardless of how that question is
ultimately answered, my concern remains that interpreting "clear
and convincing" to impart a lower burden than "clear, unequivocal,
and convincing" curtails the protections afforded noncitizens with
lawful admission in the name of rendering greater safeguards to
those with no demonstrable attachment to the United States.

                                    - 26 -
that "bespeaks the 'weight and gravity' of the private interest

affected" (quoting Addington, 

)).                     And so, it

is entirely at odds with Woodby's and Schneiderman's original

motivation    for    requiring      a    heightened      standard    of    proof   in

immigration proceedings to permit removal of admitted noncitizens

under a lower standard of proof.                As with naturalized citizens,

admitted aliens have been granted several privileges in being

present on our soil that, once awarded, "should not lightly be

revoked."     See 

.                 While admission into the

United    States    is     of   course    not    identical    to    the    grant   of

citizenship, Woodby emphasized that the hardship of removal is no

less     severe    given    the   immediacy       of    deportation       and,   more

importantly, the close family, political, and social ties that

resident noncitizens have made in this country.                    See 

.

            This is not to say that the law permits alienage to be

established by less than clear and convincing evidence, for with

the question of alienage comes the presumption of citizenship that

can only be overcome by a heightened level of proof.                      But it is

likewise important that noncitizens already admitted to the United

States, and having clearly established ties to this country, be

afforded the same protections that Woodby originally provided

them.



                                        - 27 -
                              III.

         In short, we are bound by our precedent, and I therefore

join the panel's thoughtful and narrow decision.   I am concerned,

however, that the direction in which our cases are trending is

misaligned with the interests at stake.     By affording greater

protections to persons charged with inadmissibility, we diminish

those protections afforded lawfully admitted persons.




                             - 28 -