Blanche v. Lau · ¶71

But doubt about the burden’s substance is no reason to jettison the duty altogether. As the Government itself stressed at the certiorari stage, it “is not challenging” here (and did not challenge below) “the clear and convincing standard.” Pet. for Cert. Reply Brief 11. Instead, “[t]his case is about when the [G]overnment must carry that burden.” Ibid. So if the Court’s decision today is driven by any uncertainty regarding the level of burden that applies, see ante, 7, n. 1, it could have (properly) concluded that the Government has a burden at the border and remanded the matter for consideration of the contours of that burden.

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