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Matter of Tatiana ACEIJAS-QUIROZ, Beneficiary of a
visa petition filed by Aubrey Edward Haverly, Petitioner
Decided May 20, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In adjudicating cases involving the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, the Board of Immigration Appeals lacks
jurisdiction to review a “no risk” determination by the United States Citizenship and
Immigration Services, including the appropriate standard of proof to be applied.
FOR PETITIONER: Dan R. Larsson, Esquire, Bend, Oregon
FOR THE DEPARTMENT OF HOMELAND SECURITY: Margaret A. Rosenast,
Associate Counsel
AMICUS CURIAE: American Immigration Lawyers Association1
BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; GUENDELSBERGER,
Board Member. Dissenting Opinion: MANN, Board Member.
GUENDELSBERGER, Board Member:
In a decision dated July 23, 2010, the Field Office Director (“Director”)
denied the Petition for Alien Relative (Form I-130) filed by the United
States citizen petitioner on behalf of the beneficiary as his spouse. The
Director concluded that the petitioner is ineligible to have a visa petition
approved under the Adam Walsh Child Protection and Safety Act of 2006,
Pub. L. No. 109-248, 120 Stat. 587 (“Adam Walsh Act”). The petitioner
has appealed from that decision.2
The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The petitioner filed a visa petition on February 24, 2008, to accord his
wife immediate relative status under section 201(b)(2)(A)(i) of the
1
Steven W. Manning, Esquire; Ira J. Kurzban, Esquire; Edward F. Ramos, Esquire
2 During the pendency of the appeal, we requested supplemental briefing to address
issues relating to the Adam Walsh Act. We acknowledge and appreciate the briefs
submitted by the parties and amicus curiae.Cite as 26 I&N Dec. 294 (BIA 2014) Interim Decision #3800
295
Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2006). On
March 16, 2009, the United States Citizenship and Immigration Services
(“USCIS”) sent the petitioner a request for evidence and notice of intent to
deny the petition. The notice informed the petitioner of his apparent
ineligibility to petition for his wife based on a conviction for a “specified
offense against a minor,” as that term is defined in the Adam Walsh Act.
Specifically, on December 6, 2004, the petitioner was convicted in Oregon
of sexual abuse in the third degree, sexual abuse in the second degree, and
contributing to the sexual delinquency of a minor in violation of sections
163.415, 163.425, and 163.435 of the Oregon Revised Statutes. The
petitioner was informed that he could overcome his apparent ineligibility
with evidence demonstrating that his convictions were not for a “specified
offense against a minor” or, in the alternative, that he poses “no risk” to the
beneficiary.
On June 9, 2009, the petitioner replied with additional documents and
arguments. After considering those submissions, the Director denied the
visa petition, concluding that the petitioner’s offenses qualified as
“specified offense[s] against a minor” under the Adam Walsh Act and that
the petitioner had failed to show “beyond any reasonable doubt” that he
poses no risk to the safety and well-being of the beneficiary to overcome
his statutory ineligibility.
II. ADAM WALSH ACT
The stated purpose of the Adam Walsh Act is “[t]o protect children
from sexual exploitation and violent crime, to prevent child abuse and child
pornography, to promote Internet safety, and to honor the memory of Adam
Walsh and other child crime victims.” Adam Walsh Act, 120 Stat. at 587.
The issues raised in this appeal involve title IV, “Immigration Law Reforms
to Prevent Sex Offenders from Abusing Children.”3
Specifically, section
402(a)(2) of the Adam Walsh Act, 120 Stat. at 622, amended section
204(a)(1) of the Act, 8 U.S.C. § 1154(a)(1) (2006), by adding a provision
barring a United States citizen who has been convicted of a “specified
offense against a minor” from having a family-based visa petition approved
unless the Secretary of Homeland Security, in the Secretary’s “sole and
3 Because title IV of the Adam Walsh Act does not include a specific effective date, the
date of its enactment, July 27, 2006, is the effective date. See Matter of Soriano, 21 I&N
Dec. 516, 519 (BIA 1996) (noting that the lack of an effective date for legislation
indicates that the law should be effective on the date of passage).Cite as 26 I&N Dec. 294 (BIA 2014) Interim Decision #3800
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unreviewable discretion,” determines that the citizen poses “no risk” to the
alien beneficiary. Section 204(a)(1)(A)(viii)(I) of the Act.4
III. ISSUES
The petitioner does not challenge the determination that he has been
convicted of a “specified offense against a minor,” as defined by section
111(7) of the Adam Walsh Act, 120 Stat. at 592 (codified as amended at
42 U.S.C. § 16911(7) (2006)). The approval of his visa petition is therefore
barred by section 204(a)(1)(A)(viii)(I) of the Act unless he can establish
that he poses “no risk” to the safety and well-being of the beneficiary.
The parties disagree regarding the appropriate standard of proof to be
applied to this “no risk” determination. The petitioner argues that the
preponderance of the evidence standard should be applied and that the
Director erred in requiring proof “beyond a reasonable doubt” that he poses
no risk to the beneficiary. The parties also disagree on the threshold issue
of the Board’s jurisdiction to address the appropriate standard of proof to be
applied by the Director in making this determination. As discussed below,
we conclude that Congress has entrusted the “no risk” determination
entirely to the Department of Homeland Security (“DHS”), including the
standard of proof to be applied.
IV. ANALYSIS
The petitioner contends that the “beyond a reasonable doubt” standard is
typically reserved for criminal prosecutions where the Government must
meet a heavy burden in order to protect liberty interests of individuals
charged with criminal conduct. Noting that the long-established standard
of proof in civil cases and visa petition proceedings is proof by a
preponderance of the evidence, the petitioner points out that no statutory or
regulatory provision explicitly empowers the USCIS to raise the standard of
proof in Adam Walsh Act cases to require the petitioner to prove beyond a
reasonable doubt that there is no risk to the beneficiary.5 He suggests that
4
Section 204(a)(1)(B)(i) of the Act contains a similar prohibition relating to lawful
permanent resident petitioners.
5
In a 2007 policy memorandum, the Associate Director of Domestic Operations for the
USCIS directed that a “beyond a reasonable doubt” standard should be applied in making
the “no risk” determination in individual cases, explaining the following:
To avoid denial of a petition or the revocation of a prior approval, a petitioner
who has been convicted of a specified offense against a minor must submit
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the practical effect of applying this heightened standard is that petitioners
will be precluded from demonstrating “no risk” in nearly all cases. He also
argues that in his case, the Director disregarded the positive factors,
misstated the record, and did not meaningfully weigh his evidence or
properly analyze whether he poses a risk to his wife.
The parties agree that the Board has jurisdiction in Adam Walsh Act
cases to review determinations regarding general eligibility requirements,
including whether the required relationship has been established and
whether an offense qualifies as a “specified offense against a minor.” They
disagree, however, as to whether Congress’ placement of the “no risk”
determination in the DHS’s “sole and unreviewable discretion” precludes
us from reviewing such questions as the appropriate standard of proof to be
applied.
As a threshold matter then, we must determine the extent of our
jurisdiction over these issues. The Board has limited jurisdiction to review
certain decisions of officers of the DHS under the authority delegated by
the Attorney General. 8 C.F.R. § 1003.1(b)(5) (2013). We review de novo
all questions arising in appeals from decisions of USCIS officers. 8 C.F.R.
§ 1003.1(d)(3)(iii). However, pursuant to the Adam Walsh Act, Congress
has placed “sole and unreviewable discretion” of the “no risk”
determination with the Secretary of the DHS, who, in turn, has delegated
this authority to the USCIS. Section 204(a)(1)(A)(viii)(I) of the Act.
See generally 8 C.F.R. § 2.1 (2013). As discussed below, we conclude that
we lack jurisdiction to review the USCIS’s determination regarding the
appropriate standard of proof to be applied in the “no risk” determination.
It follows that we have no authority to review the application of this
standard by the Director in this case.
In considering our jurisdiction, we begin with the language of the Adam
Walsh Act. As with all cases involving statutory construction, we assume
that the legislative purpose is expressed by the ordinary meaning of the
words Congress chose to use. Matter of A-A-, 20 I&N Dec. 492, 495 (BIA
1992) (citing INS v. Cardozo-Fonseca, 480 U.S. 421, 431 (1987); INS
v. Phinpathya, 464 U.S. 183, 189 (1984)). When the language of the
controlling statute is plain, there is no issue of interpretation because we
_______________________________
evidence of rehabilitation and other relevant evidence that clearly demonstrates,
beyond any reasonable doubt, that he or she poses no risk to the safety and
well-being of his or her intended beneficiary(ies).
Memorandum from Michael Aytes, Assoc. Dir., Domestic Operations, to USCIS officials,
at 5 (Feb. 8, 2007) (emphasis added), available at http://www.uscis.gov/sites/default/files
/USCIS/Laws/Memoranda/Static_Files_Memoranda/adamwalshact020807.pdf.Cite as 26 I&N Dec. 294 (BIA 2014) Interim Decision #3800
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“must give effect to the unambiguously expressed intent of Congress.”
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843
(1984).
The provision relevant to the Board’s jurisdiction in this case is section
204(a)(1)(A)(viii)(I) of the Act, which states the following:
Clause (i) [specifying a citizen’s eligibility to file for a visa petition on behalf of
a spouse or child] shall not apply to a citizen of the United States who has been
convicted of a specified offense against a minor, unless the Secretary of Homeland
Security, in the Secretary’s sole and unreviewable discretion, determines that the
citizen poses no risk to the alien with respect to whom a petition described in clause
(i) is filed.
(Emphasis added.)
In its brief, amicus asserts that Congress’ assignment of “sole and
unreviewable discretion” was intended to shield the “no risk” determination
from judicial review, while leaving in place the Board’s authority to review
de novo all issues in family-based visa petition appeals, including the “no
risk” determination. We disagree. First, when Congress has acted to limit
judicial review under the Act, it has expressly referred to court jurisdiction,
stating that “no court shall have jurisdiction to review” certain
determinations, orders, decisions, judgments, or actions. See, e.g., sections
242(a)(2)(A)−(C) of the Act, 8 U.S.C. §§ 1252(a)(2)(A)−(C) (2012)
(emphasis added) (relating to specified determinations regarding the
removal of arriving aliens and claims of fear of persecution, denials of
discretionary relief, and specified removal orders against criminal aliens).
The relevant provision of the Adam Walsh Act does not mention court
review, but it assigns the “no risk” determination solely to the Secretary of
the DHS, to the exclusion of other executive agencies.
Additionally, when Congress has used the “sole and unreviewable
discretion” language in other situations, it has done so in order to vest
ultimate responsibility for the determination in one Federal agency in
situations where there might otherwise be overlapping or shared agency
responsibility. For example, in section 212(d)(3)(B) of the Act, 8 U.S.C.
§ 1182(d)(3)(B) (2012), Congress provides for the Secretary of State or the
Secretary of Homeland Security to have “sole unreviewable discretion” to
waive the application of the terrorism ground of inadmissibility “after
consultation with the Attorney General” and the other Secretary. Similarly,
section 235(b)(1)(A)(iii) of the Act, 8 U.S.C. § 1225(b)(1)(A)(iii) (2012),
which pertains to the designation of additional classes of aliens subject to
expedited removal, places “sole and unreviewable discretion” in the
Attorney General. Thus, Congress has used the “sole and unreviewable
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Government agency responsible for making a final and unreviewable
determination vis-à-vis other governmental agencies that might otherwise
have such responsibility. We therefore reject the suggestion that the “sole
and unreviewable discretion” language was intended only to limit judicial
review.
The petitioner argues that even if Congress’ assignment of the “no risk”
determination to the DHS is construed as precluding the Board from
reviewing the discretionary aspects of that determination, it nevertheless
leaves jurisdiction with the Board to review legal issues underlying the
exercise of discretion. We find that the term “sole and unreviewable
discretion” plainly reflects Congress’ intent that the DHS should have the
sole authority to establish a framework for USCIS adjudicators to use in
making the “no risk” discretionary determination in individual cases.
Establishment of such a framework is essential to the uniform application
of the law to the individual determinations of risk that will be made by
USCIS officials. The application of the appropriate standard of proof is
part and parcel of the ultimate exercise of discretion delegated to the DHS.
There is no precedent for the Board to review any part of a discretionary
determination by the USCIS in visa petition proceedings, so this is not a
departure from current standards. For this reason, we find that the standard
of proof necessarily falls within the scope of the DHS’s sole responsibility
for the “no risk” determination.
Since its creation in 2003, the DHS has existed separate and apart from
the Department of Justice.6 Although the DHS and Department of Justice
continue to have shared responsibility in immigration-related matters,
Congress has delineated authority and responsibility between the agencies,
with certain functions now accorded to the DHS as a separate and distinct
agency from the Department of Justice. Compare section 103(a)(1) of the
Act, 8 U.S.C. § 1103(a)(1) (2012) (powers and duties of the Secretary of
Homeland Security), with section 103(g)(1) of the Act (authorities and
functions of the Attorney General). Congress created the DHS to better
integrate Federal, State, and local government efforts to ensure national
security. See generally 6 U.S.C. §§ 111(b)(1), 112(c) (2012).
In passing the Adam Walsh Act, Congress indicated the high
importance it placed on protecting children from sexual exploitation and
violent crime. A Senate sponsor of the Adam Walsh Act described it as
“the most comprehensive child crimes and protection bill in our Nation’s
6 On November 25, 2002, the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135, created the Department of Homeland Security as a distinct agency
separate from the Department of Justice.Cite as 26 I&N Dec. 294 (BIA 2014) Interim Decision #3800
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history.” 152 Cong. Rec. S8012-02 (daily ed. July 20, 2006) (statement of
Sen. Orrin Hatch), cited in United States v. Tom, 565 F.3d 497, 499 (8th Cir.
2009). In this context, we interpret Congress’ allocation of responsibility
for the “no risk” determination to the DHS as an allocation of sole authority,
unreviewable by the Board or other executive branch agencies, to construct
the legal framework within which such discretionary determinations are to
be made, including the appropriate standard of proof.
The petitioner and amicus rely on Federal court cases that draw a
distinction between discretionary determinations and purely legal issues
when applying jurisdictional limits on review of agency decisions.
See, e.g., Al Ramahi v. Holder, 725 F.3d 1133, 1138 n.2 (9th Cir. 2013)
(collecting cases). However, this distinction is based on statutory language
that explicitly preserves court review of legal issues when judicial review
authority has otherwise been eliminated. See section 242(a)(2)(D) of the
Act (mandating that specified provisions eliminating judicial review shall
not be “construed as precluding review of constitutional claims or questions
of law raised upon a petition for review”).
There is no comparable provision in the Adam Walsh Act that reserves
purely legal issues underlying the DHS’s “no risk” determination for
review by the Board. Had Congress intended to make such a distinction in
the Adam Walsh Act, it could have specified that the “no risk”
determination was delegated to the DHS only in regard to the discretionary
aspects of that determination. Were such a distinction intended, however,
there would be many other legal challenges to “no risk” determinations,
including whether the Director considered all the evidence, the legal
analysis was sufficient, and the evidence ultimately met the requisite
burden of proof. Such a bifurcated approach to Board review of the “no
risk” determination would conflict with Congress’ plain language
delegating this determination to the DHS’s “sole and unreviewable
discretion.”
We do not have review authority comparable to that exercised by the
courts under the Administrative Procedure Act, ch. 324, § 10(e), 60 Stat.
237, 243−44 (1946) (codified as amended at 5 U.S.C. § 706 (2012)).
Unlike Article III courts, we acquire our jurisdiction solely through
8 C.F.R. § 1003.1(b), and its scope may be limited by a legislative
enactment of Congress. The Adam Walsh Act reserves to the DHS the
agency discretion to establish the parameters for adjudicating the “no risk”
determination. We find that this delegation of agency authority precludes
our review of both the legal and discretionary aspects of the “no risk”
determination. We will therefore dismiss the petitioner’s appeal.
We conclude by noting that the petitioner and amicus have raised
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doubt” standard of proof to the Adam Walsh Act “no risk” determination.
Ordinarily, in visa petition proceedings, the petitioner is required to
demonstrate eligibility for the benefit sought under a “preponderance of the
evidence” standard. See Matter of Pazandeh, 19 I&N Dec. 884, 887 (BIA
1989); Matter of Soo Hoo, 11 I&N Dec. 151, 152 (BIA 1965); see also
Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010) (stating that the
preponderance of evidence standard applies except where a different
standard is specified by law). Moreover, a heightened standard of review
is generally applied by legislation, see, e.g., section 240(c)(2)(A) of the
Act, 8 U.S.C. § 1229a(c)(2)(A) (2012) (providing that an applicant for
admission must prove that he or she is “clearly and beyond doubt” entitled
to be admitted), or by regulation promulgated after public notice and
comment, see, e.g., 8 C.F.R. § 1212. 7(d) (2013) (providing that a violent
offender may be granted a section 212(h)(2) waiver of inadmissibility by
“clearly demonstrat[ing]” that denial would result in the elevated level of
“exceptional and extremely unusual” hardship).
If we had jurisdiction to determine the standard of proof for the “no
risk” determination, we would find it appropriate to consider such matters
as the evidentiary difficulties involved and the individual and governmental
interests at stake. However, as discussed above, we lack jurisdiction to
resolve this issue under our limited review authority.
To the extent that the petitioner has raised arguments challenging the
constitutionality of the Adam Walsh Act provision at issue in this case,
we may not, as a general matter, entertain constitutional challenges to
provisions of the immigration laws. See Bagues-Valles v. INS, 779 F.2d
483, 484 (9th Cir. 1985); Matter of Fuentes-Campos, 21 I&N Dec. 905,
912 (BIA 1997).
Accordingly, the petitioner’s appeal will be dismissed.
ORDER: The appeal is dismissed.
DISSENTING OPINION: Ana M. Mann, Board Member
I respectfully dissent.
I would hold that the Board retains jurisdiction to review the legal
standard applied by the Secretary of Homeland Security to the “no risk”
determination. The term “sole and unreviewable discretion” reflects
Congress’ intent that the Field Office Director (“Director”) should have the
sole authority to review the petitioner’s evidence and to make a binding
discretionary determination that the petitioner poses “no risk” to the
beneficiary. However, the proper evidentiary standard to be applied is
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matter that is within our statutory authority to address in interpreting the
Immigration and Nationality Act and its accompanying regulations.
The Federal regulations explicitly provide that “[t]he Board may review
all questions arising in appeals from decisions issued by Service officers
de novo.” 8 C.F.R. § 1003.1(d)(3)(iii) (2013). In cases involving the
Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No.
109-248, 120 Stat. 587 (“Adam Walsh Act”), the appropriate standard of
proof to apply is a pure question of law, which is within the scope of our
review. Therefore, although Congress gave the Secretary unfettered
discretion to make “no risk” determinations free from review, absent
contrary legislative intent I would find that Congress did not divest us of
our understood authority to review de novo “all [other] questions,”
including, but not limited to, pure questions of law. Id. Under section
103(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1103(a)(1)
(2012), a determination by the Board “with respect to all questions of law
shall be controlling.” See Matter of Ruiz-Massieu, 22 I&N Dec. 833,
842−46 (BIA 1999) (finding that the Attorney General may not review a
determination by the Secretary of State on a question of foreign policy, but
that the Secretary must set forth a facially reasonable basis for a
determination).
The United States Citizenship and Immigration Services (“USCIS”) has
employed the standard of “beyond a reasonable doubt,” which is neither
authorized under the Adam Walsh Act nor the Immigration and Nationality
Act. The USCIS has not implemented regulations interpreting the Adam
Walsh Act. Rather, it simply states that based on the nature of the offenses
to which the Adam Walsh Act relates and the potential risk of harm to the
intended beneficiaries, it will interpret the “no risk” language of the statute
to require a higher level of evidence than that required in general visa
petition cases like marriage fraud cases. While I agree with the importance
of the interests at stake in these cases, the Secretary’s use of this standard of
proof goes beyond the express terms of the Immigration and Nationality
Act and the Adam Walsh Act.
In section 402(a) of the Adam Walsh Act, 120 Stat. at 622−23,
Congress imposed a heavy burden on petitioners to prove that they have not
been convicted of a “specified offense against a minor” and, if they fail to
meet that burden, to prove that they would pose no risk to the beneficiary in
order to merit a favorable exercise of the Secretary’s discretion. These
statutory hurdles are substantial for a petitioner to surmount. Thus, the
legitimate aims of the Adam Walsh Act would not necessarily be furthered
by imposing the kind of burden of proof usually reserved for the
Government to meet in criminal matters.Cite as 26 I&N Dec. 294 (BIA 2014) Interim Decision #3800
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The USCIS argues that “the ‘preponderance of the evidence’ standard is
not inviolable within visa petitions adjudications.” For example, the
USCIS points out that in marriage fraud cases, a petitioner must establish
by “clear and convincing evidence” that the beneficiary did not engage in a
prior marriage fraud. In addition, in the context of the nondisclosure of a
relative on a previous visa petition, a petitioner must submit “clear and
convincing” evidence that the relationship is bona fide in light of the prior
failure to disclose it to the Government. See Matter of Ma, 20 I&N Dec.
394, 398 (BIA 1991).
These examples involve allegations of fraud that can only be rebutted
with “clear and convincing” evidence that the relationship is bona fide.
See, e.g., Matter of Patel, 19 I&N Dec. 774, 782−83 (BIA 1988). In
marriage fraud cases, the standard of “clear and convincing” evidence is
actually explicit in the statute at section 204(a)(2)(A)(ii) of the Act,
8 U.S.C. § 1154(a)(2)(A)(ii) (2012), whereas here, the Secretary’s choice of
standard of proof lacks any statutory basis. Moreover, aside from these two
examples, the USCIS has cited no case where the “beyond a reasonable
doubt” standard has been used.1
Based on the lack of explicit statutory or regulatory authority for the
heightened standard, I would find that “beyond a reasonable doubt” is not
an appropriate standard to apply in these cases. I further believe that we
can review whether the Director fully considered and evaluated all of the
evidence and clearly set forth the basis for denial of the visa petition. See
Memorandum from Michael Aytes, Assoc. Dir., Domestic Operations,
to USCIS officials, at 7 (Feb. 8, 2007) (stating that the adjudicator
must clearly articulate the factual basis for the determination), available
at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_
Files_Memoranda/adamwalshact020807.pdf; see also Whetstone v. INS,
561 F.2d 1303, 1306 (9th Cir. 1977).
1 The Adam Walsh Act provides for the civil commitment of “sexually dangerous
person[s]” under 18 U.S.C. § 4248 (2012). Under § 4248(d), the Government has the
burden of proving that the respondent is sexually dangerous by “clear and convincing
evidence.” See United States v. Perez, No. 5:11-HC-2015-BR, 2012 WL 5493614, at
*3 (E.D.N.C. Nov. 13, 2012). This is a lesser standard than that which the USCIS applies
to Adam Walsh Act visa petitions, even though the restriction of a person’s liberty is
at stake under § 4248. Id.; see also United States v. Hunt, 643 F. Supp. 2d 161, 179
(D. Mass. 2009) (“The clear and convincing evidence standard is an ‘intermediate
standard,’ lying somewhere ‘between preponderance of the evidence and proof beyond
a reasonable doubt.’” (quoting Addington v. Texas, 441 U.S. 418, 425 (1979))).