What Changes if the Burden of Proof Changes?

A recent federal appellate decision, Castaneira v. Noem, raises a focused but important question for cases under the Adam Walsh Act:

What happens if the burden of proof applied by USCIS is lowered—from a standard approaching “beyond a reasonable doubt” to a preponderance of the evidence?

This question can be examined on its own terms, without assuming broader changes to the structure of adjudication.

1. The Current Metric: Denial Based on Uncertainty

In practice, USCIS has applied a very high evidentiary threshold to the “no risk” determination. Although the statute does not define a burden of proof, agency guidance has required petitioners to establish the absence of risk under a standard comparable to proof beyond a reasonable doubt.

Under that approach, the decision rule operates as follows:

• If any plausible concern about risk remains unresolved, the petition is denied.
• The absence of certainty is treated as sufficient grounds for denial.
• Evidence is often evaluated in terms of whether it eliminates doubt, rather than whether it supports a conclusion.

This creates a system in which even relatively weakly supported concerns about risk can outweigh the evidence presented, particularly where those concerns are not clearly anchored to the evidentiary record.

2. A Lower Burden: A Different Decision Rule

If the burden of proof is lowered to a preponderance of the evidence, the statutory requirement does not change. The petitioner must still demonstrate that he or she poses no risk.

What changes is the metric for decisionmaking.

Under a preponderance standard, the question becomes:

Does the evidence, taken as a whole, support the conclusion that the petitioner poses no risk?

This formulation does not require proof that risk is absent in all conceivable circumstances. Rather, it contemplates an assessment grounded in the evidentiary record. At the same time, where the governing standard remains undefined and review is limited, the manner in which that assessment is carried out has historically been left largely to the agency’s discretion.

The shift in burden does not eliminate the relevance of uncertainty. An adjudicator may still identify concerns based on the record. However, those concerns cannot operate in the same way as under a near-certainty standard. The inquiry is no longer whether any conceivable concern can be articulated, but whether the evidentiary record provides a rational basis for concluding that the petitioner poses a risk to the beneficiary under the applicable burden.

In that respect, the decision becomes less dependent on the existence of unresolved concerns in the abstract and more dependent on whether those concerns are grounded in the evidence and sufficient, under the applicable burden, to support the statutory determination.

Even if the agency maintains its current structure, this change affects how evidence must be evaluated.

3. Practical Effect at USCIS

In close cases, a lower burden of proof may alter how adjudicators approach the record.

Under a higher standard, compelling evidence can still result in denial if the adjudicator identifies any unresolved concern. Under a lower standard, the same record may require a different analysis:

• Strong psychological evaluations, evidence of desistance, and long periods without incident must be evaluated in relation to the asserted risk.
• Generalized or hypothetical concerns carry less weight unless tied to the evidence in the record.
• In cases presenting well-documented evidence, adjudicators may have greater latitude—often in consultation with supervisory review—to approve petitions that would otherwise be denied under a more rigid standard.

This does not guarantee approval. It does, however, change the conditions under which approval becomes possible, including in cases where adjudicators, often in consultation with supervisory review, determine that a well-developed record supports approval under the applicable standard.

A psychological evaluation may conclude, based on the available evidence, that no risk has been identified. However, USCIS may still identify gaps in the evidentiary record—such as missing documentation or unresolved factual issues—that bear on the risk determination. In that sense, the agency’s inquiry is not limited to the expert’s conclusion, but to the completeness and sufficiency of the record on which that conclusion rests.

4. Implications for Review

The impact of a lower burden of proof on administrative and judicial review is more limited.

• At the agency level, internal appellate review of Adam Walsh Act determinations remains constrained. The Board of Immigration Appeals does not generally review these determinations, and the Administrative Appeals Office has historically been treated as lacking jurisdiction over the core “no risk” finding.
• In federal court, however, the burden of proof becomes significant. If the standard applied by the agency is subject to review, courts may examine whether the agency applied the correct legal framework, including whether it employed an appropriate burden of proof as a matter of legal framework, even though courts do not reweigh the evidence or make an independent determination of whether the petitioner satisfies that standard.

In that sense, a change in burden does not expand internal review, but it may affect how courts evaluate the structure of the decision. To the extent the applicable burden of proof becomes subject to judicial review, the relationship between the stated standard and the reasoning reflected in agency decisions may become more significant.

5. Why This Matters at the Outset

Even viewed narrowly, the burden-of-proof issue highlights a practical point:

Cases must be built from the beginning as evidentiary records capable of withstanding structured review.

If the applicable standard requires a structured evaluation of the evidentiary record, then:

• The record must be developed to support a reasoned conclusion.
• Psychological evaluations and risk assessments must be both substantively sound and framed in a way that can be evaluated within a legal framework.
• Submissions that rely on conclusory assertions or fail to engage the relevant factors are unlikely to gain traction—either at USCIS or in federal court.

6. A Narrow Shift That Raises Broader Questions

The burden-of-proof issue does not, by itself, resolve how Adam Walsh Act cases will be adjudicated going forward. But it does introduce a point of tension:

• If the burden is lowered, yet decisions continue to rely on unstructured doubt or generalized concerns, the relationship between the stated standard and the reasoning reflected in agency decisions becomes more visible.

That tension may lead to further examination of how these determinations are made.

The decision in Castaneira was a remand, not a final resolution of the burden-of-proof issue. Nevertheless, by treating that issue as subject to judicial review, it signals a potential opening for litigation not only as to the applicable burden, but also as to other aspects of how the agency structures and carries out the statutory determination.

Conclusion

Lowering the burden of proof does not change the statutory requirement that a petitioner demonstrate that he or she poses no risk. It does, however, change how that requirement is applied in practice.

At a minimum, it shifts the focus from eliminating all uncertainty to evaluating whether the evidentiary record supports the statutory conclusion. The decision does not resolve how the broader adjudicatory framework will be treated, but it introduces a point of tension between the stated standard and the reasoning reflected in agency decisions.

For petitioners, this underscores the importance of presenting a comprehensive and carefully developed record from the outset—one that can be meaningfully assessed under a structured evidentiary standard and, where necessary, evaluated within a legal framework subject to judicial review.