to the BIA in the six years before the BIA’s 2000 order. For this reason, as well, the BIA’s order is rational. We outline several other reasons that placing the burden on Rumierz is rational. A shift of burden from the government to the individual when there is a collateral attack on a final judgment, as here, is quite common in the criminal law. For instance, the Court has placed the burden of proof on federal habeas petitioners who, under 28 U.S.C. § 2255, seek to vacate an already-imposed federal sentence on the basis that predicate state offenses had been vacated. See Daniels v. United States, 532 U.S. 374, 382, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001); Custis v. United States, 511 U.S. 485, 496-97, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994); cf. Taylor, 484 U.S. at 414, 108 S.Ct. 646 (<HOLDING>). As to this case, in which there are concerns
holding that there is a presumption that new evidence discovered by criminal defendant after trial is over would not change outcome of trial holding that affidavit from a new witness was not newly discovered evidence because trial counsel knew of the existence of the witness before trial trial counsel with due diligence could have discovered the evidence holding that where there is evidence sufficient to sustain finding of trial court that prejudicial error was contained in record there is no basis for stating that trial court abused discretion in granting new trial holding that a new trial was warranted where there is reasonable probability that the false testimony introduced by the government influenced the outcome of the trial holding that to justify a new trial based upon newly discovered evidence 1 the evidence must have been discovered after trial 2 the failure to discover this evidence must not be attributable to a lack of due diligence on the part of the movant 3 the evidence must not be merely cumulative or impeaching 4 the evidence must be material and 5 the evidence must be likely to produce an acquittal if a new trial is granted