# Do I have to prove I am allowed to stay in the US if I'm in court?

- Jurisdiction: United States
- Practice area: Immigration Law
- Published: 2026-11-02
- Last updated: 2026-11-02
- Canonical: https://lawasked.com/us/immigration/i-prove-i-allowed-stay-us-if-i

## Question

I am currently in Chicago, Illinois, and I am facing a hearing regarding my status next month. I originally arrived here about three years ago on a tourist visa, but I stayed longer than I was supposed to because of some family emergencies. Recently, an immigration official told me that they are starting a process to remove me from the country because they claim I don't have the right paperwork to be here anymore. I have my old passport and the original entry stamps from when I first landed, but I am really worried because the official mentioned that if I can't prove exactly how and when I entered the country, they will just assume I am here illegally. I have already gathered my old flight itineraries and my initial visa documents from three years ago to show my original entry date. However, I am confused about who actually has to do the work in court. Do I have to be the one to provide all the evidence to show I am not breaking the law, or is it up to the government to prove that I am staying here illegally?

## Summary

Yes, in your specific removal proceeding, you have the legal burden to prove how, when, and where you entered the United States. If you cannot provide this proof, the law presumes you are in the country illegally.

## Analysis

Because you are facing a hearing regarding your status in Chicago, you are in what is known as a removal proceeding—a legal process to determine if someone should be deported [2]. In these specific proceedings, the law places the responsibility on you to provide evidence regarding your arrival. 

The law states that "the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States" [1]. This means that instead of the government having to prove you entered illegally, you must prove exactly how you arrived. Furthermore, the law specifies that "If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law" [1]. This means if you fail to meet this requirement, the judge will assume you are here illegally.

To help you meet this burden, you have the right to access certain government records. The law says you are "entitled to the production of his visa or other entry document, if any, and of any other documents and records, not considered by the Attorney General to be confidential, pertaining to his entry in the custody of the Service" [1]. 

While you have already gathered flight itineraries and visa documents from three years ago, the outcome of your case will depend on whether the judge finds this evidence sufficient to prove your specific entry details. Additionally, if you are applying for any form of relief (such as asylum), you will have a separate burden to prove you meet the specific requirements for that relief [2].

## Statutory citations

- Immigration and Nationality Act, 8 U.S.C. § 1361 - Burden of proof upon alien [in force] (https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1361)
  > In any removal proceeding... the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States... If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law.
- Immigration and Nationality Act, 8 U.S.C. § 1229a - Removal proceedings [in force] (https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1229a)
  > An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.

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