Oscar De Leon v. Eric Holder, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1651
OSCAR ANGEL DE LEON,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: May 14, 2014 Decided: July 30, 2014
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Petition granted and case remanded by published opinion. Judge
Motz wrote the majority opinion, in which Judge King joined.
Judge Duncan wrote a dissenting opinion.
ARGUED: Cherylle C. Corpuz, CHERYLLE C. CORPUZ, ESQ. PC,
Philadelphia, Pennsylvania, for Petitioner. Jeffery R. Leist,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Stuart F. Delery, Assistant Attorney
General, Ernesto H. Molina, Jr., Assistant Director, Andrew N.
O'Malley, Office of Immigration Litigation, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
DIANA GRIBBON MOTZ, Circuit Judge:
Oscar Angel De Leon, a Guatemalan national residing in the
United States, petitions for review of the decision of the Board
of Immigration Appeals (BIA) denying his application for
“special rule” cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act (NACARA). For the
reasons that follow, we grant the petition for review and remand
the case to the BIA for further proceedings.
I.
In 1997, Congress enacted NACARA to amend the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA). See Appiah v. INS, 202 F.3d 704, 707 (4th Cir. 2000).
NACARA authorizes individuals from certain countries --
including Guatemala -- to seek discretionary relief from removal
under the more lenient standards that predated IIRIRA. See
Gonzalez v. Holder, 673 F.3d 35, 37 (1st Cir. 2012). Congress
passed NACARA to correct a provision of IIRIRA “that would have
had the effect of changing the rules in the middle of the game
for thousands of Central Americans and others who came to the
United States because their lives and families had been torn
apart by war and oppression.” Appiah, 202 F.3d at 710(quotation marks omitted).
2
Section 203 of NACARA allows aliens from Guatemala to apply
for what is known as “special rule” cancellation of removal.
8 U.S.C. § 1229b. An applicant for special rule cancellation of
removal must satisfy a number of requirements, only one of which
is at issue here: the applicant must prove that he was not
“apprehended at the time of entry” if he entered the United
States on any occasion after December 31, 1990. 8 C.F.R.
§ 1240.61(a)(1).
“Entry” into the United States for immigration purposes
requires more than setting foot on American soil. As defined by
the BIA, “entry” requires (1) a crossing into the territorial
limits of the United States; (2) inspection and admission by an
immigration officer or actual and intentional evasion of
inspection; and (3) freedom from official restraint. 1 In re
Pierre, 14 I. & N. Dec. 467, 468 (BIA 1973). This case concerns
the meaning of the phrase “freedom from official restraint.”
An alien enters free from official restraint only if he
experiences some degree of liberty in the United States before
the government apprehends him. Thus, freedom from official
1
Although we have never formally adopted the BIA’s
definition of “entry,” our published cases addressing the entry
question comport with the BIA’s standard. See Chen Zhou Chai v.
Carroll, 48 F.3d 1331, 1343 (4th Cir. 1995); Lazarescu v. United
States, 199 F.2d 898, 900 (4th Cir. 1952). Because De Leon does
not challenge this standard, we assume, without deciding, that
it applies here.
3
restraint “means that the alien who is attempting entry is no[t]
under constraint emanating from the government that would
otherwise prevent [him] from physically passing on.” Correa v.
Thornburgh, 901 F.2d 1166, 1172 (2d Cir. 1990). An alien
detained at a border crossing or customs enclosure, for example,
cannot claim an “entry” merely because he has technically
crossed into United States territory. See, e.g., id. at 1169;
Sidhu v. Ashcroft, 368 F.3d 1160, 1165 (9th Cir. 2004).
The BIA has explained that official restraint “may take the
form of surveillance, unbeknownst to the alien.” Pierre, 14 I.
& N. Dec. at 469. Such surveillance constitutes official
restraint because an alien who is under surveillance by a
government official “lacks the freedom to go at large and mix
with the population.” Id. An alien kept under surveillance by
the government is not free from official restraint even if
officials permit him to proceed some distance beyond the border
before physically intercepting him. See, e.g., United States v.
Gonzalez-Torres, 309 F.3d 594, 599 (9th Cir. 2002). But the
critical question is whether the alien is in fact free from
official restraint, not whether or how the alien has exercised
such freedom. In re Patel, 20 I. & N. Dec. 368, 374 (BIA 1991).
An applicant for cancellation of removal under NACARA must
proceed through a “two-step process.” Rodriguez v. Gonzales,
451 F.3d 60, 62 (2d Cir. 2006) (per curiam). First, the
4
applicant bears the burden of establishing his eligibility for
relief. That is, he must prove by a preponderance of the
evidence that he meets all requirements for special rule
cancellation of removal -- including that he entered the United
States “free from official restraint.” 8 U.S.C. § 1229a(c)(4);
In Re G-, 20 I. & N. Dec. 764, 770-71 (BIA 1993). Second, if
the alien “satisfies the statutory requirements, the Attorney
General in his discretion decides whether to grant or deny
relief.” Rodriguez, 451 F.3d at 62; see also 8 U.S.C.
§ 1229b(a).
Congress has strictly limited our jurisdiction to review
the Attorney General’s resolution of NACARA applications. The
denial of special rule cancellation of removal is final and “not
subject to judicial review,” except for “constitutional claims
or questions of law” arising from the denial. 8 U.S.C.
§ 1252(a)(2)(B), (D); see also Barahona v. Holder, 691 F.3d 349,
353 (4th Cir. 2012). Such “constitutional claims or questions
of law” typically arise from rulings made at the first step of
the application process -- whether the alien proved eligibility
for relief. We retain our jurisdiction to review these
constitutional and legal questions recognizing that the ultimate
granting of relief is “not a matter of right under any
circumstances but rather is in all cases a matter of grace” to
5
be determined by the Attorney General. Rodriguez, 451 F.3d at
62 (quoting INS v. St. Cyr, 533 U.S. 289, 307-08 (2001)).
We review de novo legal questions raised in petitions for
review. Higuit v. Gonzales, 433 F.3d 417, 420 (4th Cir. 2006).
Where, as here, the BIA “issue[s] its own opinion without
adopting the IJ’s opinion,” we review only the decision of the
BIA. Martinez v. Holder, 740 F.3d 902, 908 (4th Cir. 2014).
With this understanding of NACARA in mind, we turn to the
underlying facts and procedural history of this case.
II.
Born in Guatemala, De Leon first entered the United States
illegally with his uncle in 1988. During his early years in the
United States he travelled among various east coast states
performing agricultural work, ultimately settling in Delaware.
In July 2003, a border patrol agent, Galen Huffman,
apprehended De Leon north of the Arizona-Mexico border as he
returned to the United States from an unauthorized trip to Latin
America. According to Agent Huffman’s written report, on July
30, he observed a pickup truck at “milepost nine” of Arivaca
Road near Sasabe, Arizona, approximately seventeen miles north
of the border. There, he saw a number of persons attempting to
conceal themselves in the truck bed. Agent Huffman followed the
6
truck eight more miles before stopping it at milepost seventeen
and apprehending its passengers, including De Leon.
Shortly after De Leon’s apprehension by Agent Huffman,
immigration officials released him on bond. He currently
resides in Delaware with his wife and his three United States-
citizen children.
In 2005, De Leon submitted an application for special rule
cancellation of removal under NACARA, as well as applications
for other forms of immigration relief. An immigration judge
(IJ) denied these applications and ordered De Leon removed to
Guatemala. The BIA affirmed the IJ’s denial of De Leon’s other
applications, but concluded that the IJ provided an improper
basis for denying NACARA relief. 2 Accordingly, the BIA remanded
the case for the IJ to reconsider whether De Leon qualified for
special rule cancellation of removal under NACARA.
In May 2010, the IJ held a hearing to reevaluate this
issue. The judge determined that De Leon’s eligibility for
NACARA relief now depended on whether he was apprehended at his
“time of entry” when he crossed into the United States in July
2
The IJ had ruled that De Leon failed to document that he
registered prior to December 31, 1991 -- a prerequisite for
obtaining NACARA relief as a Guatemalan national. But the BIA
held that De Leon’s credible testimony, in addition to a letter
from his attorney verifying that he had registered, satisfied
this criterion.
7
2003. Counsel for the government stated that she “th[ought] [De
Leon] met all of the other requirements” for NACARA eligibility.
At the hearing, the parties primarily disputed the
circumstances surrounding De Leon’s return to the United States
in July 2003. De Leon contended that he crossed the border on
foot several days before July 30, walked for six or seven hours
within the United States, stopped to rest at a smugglers’
“ranch,” boarded a pickup truck, and drove for three more hours
before being apprehended near Tucson, Arizona. But the
government, relying on Agent Huffman’s report, maintained that
De Leon boarded a pickup truck in Mexico on July 30 and that he
was apprehended later that day when Agent Huffman first observed
the truck at milepost nine, seventeen miles north of the border.
The government acknowledged that Agent Huffman may have
apprehended De Leon “a slight distance away from the border.”
But, comparing this issue to “extended border search[es],” which
officers may conduct without violating the Fourth Amendment if
they apprehend an alien within twenty-five miles of the border,
the government argued that De Leon was effectively apprehended
at the border at his “time of entry” for purposes of NACARA.
The IJ agreed with the government. In an oral ruling, the
IJ pointed to numerous inconsistencies in De Leon’s testimony
and found him not credible as to “the issue of the date and
location of his entry and the circumstances surrounding his
8
entry.” The IJ found that Agent Huffman provided the most
credible evidence regarding De Leon’s return to the United
States. That evidence showed that De Leon was apprehended
“within 25 miles of the border.” Borrowing from the border-
search context, the IJ held that this qualified as an
apprehension “at the border or at the functional equivalent of
the border.” On this basis, the IJ concluded that De Leon’s
arrest constituted apprehension “at the time of his entry” into
the United States, precluding NACARA relief. She therefore
again denied De Leon’s application for special rule cancellation
of removal under NACARA and ordered him removed to Guatemala.
The BIA affirmed. Perhaps recognizing that different
standards govern whether border officials may search aliens near
the border without violating the Fourth Amendment and whether
such aliens have affected an “entry” for purposes of NACARA, the
BIA did not adopt the IJ’s rationale. But the BIA did agree
with the IJ’s “ultimate conclusion” that De Leon failed to meet
his burden of proof that he was not apprehended at his “time of
entry.” The BIA found that Agent Huffman provided “the only
credible and reliable evidence” regarding De Leon’s entry. In
light of this evidence, the BIA recognized that it appeared that
De Leon “crossed into the territorial limits of the United
States and was intentionally evading inspection.” But the BIA
9
held that De Leon failed to present “clear evidence that he was
ever ‘free from official restraint.’”
De Leon then filed this petition for review.
III.
Given our limited jurisdiction over this petition, De Leon
accepts, as he must, the facts as found in the proceedings
below. Thus, on appeal, he concedes that he entered this
country on July 30, 2003, and that on that day Agent Huffman
observed him at milepost nine of Arivaca Road -- seventeen miles
north of the border -- and took him into custody eight miles
later. De Leon similarly accepts that, in order to prove that
he was not apprehended at his “time of entry,” he must prove (1)
a crossing into United States territory, (2) admission by or
evasion from an immigration officer, and (3) freedom from
official restraint. De Leon Reply Br. 1-2. Further, he
recognizes that official restraint may take the form of
government surveillance. 3
De Leon contends that, accepting these facts and applying
these principles, the only credible evidence establishes that he
3
Hence, De Leon does not challenge the IJ’s adverse
credibility ruling or contend that the government bears the
burden of proof. And neither do we. Rather, we accept the IJ’s
adverse credibility ruling and evaluate whether De Leon
satisfied his burden of proof in light of the facts found below.
10
entered the United States free from official restraint. He
claims the BIA erred as a matter of law in concluding otherwise.
Because the BIA issued its own opinion without adopting the
IJ’s rationale, we review only the BIA’s opinion. Martinez, 740
F.3d at 908. The BIA dismissed De Leon’s appeal on the ground
that De Leon failed to “present[] clear evidence that he was
ever ‘free from official restraint.’” Noting that official
restraint “may take the form of surveillance, unbeknownst to the
alien,” the BIA reasoned that it remained unclear “at what point
[De Leon] actually entered the United States, how much time had
passed before he was spotted by Agent Huffman, and how far from
the border he had travelled before being detained.”
The Attorney General defends the BIA’s ruling primarily by
emphasizing the applicable burden of proof. 4 The Attorney
General contends that, in failing to provide credible evidence
regarding the circumstances of his entry, De Leon did not
4
The Attorney General also briefly contends that we must
deny this petition because De Leon assertedly challenges (1) the
agency’s findings of fact, which we lack jurisdiction to review,
and (2) the BIA’s three-part “entry” standard, which deserves
Chevron deference. Both arguments are meritless. First, this
case presents a pure question of law, as the many appellate
opinions assessing freedom from official restraint confirm. See
Sidhu, 368 F.3d at 1164 (citing cases). Second, we need not
determine whether the BIA’s “entry” standard warrants Chevron
deference because, even if it does, De Leon does not challenge
this standard. Indeed, he embraces it and asks us to apply it.
11
satisfy his burden of proving an entry free from official
restraint.
We disagree. De Leon did indeed bear the burden of proving
that he entered the United States free from official restraint.
See Pastora v. Holder, 737 F.3d 902, 905 (4th Cir. 2013). But
he met that burden by relying on Agent Huffman’s written report,
which, the BIA expressly found, constituted the “only credible
and reliable evidence” in the record and showed that Agent
Huffman “first saw” De Leon at milepost nine, seventeen miles
beyond the border. That the government, rather than De Leon,
offered this evidence makes no difference. As Judge Friendly
noted long ago, a party may satisfy his burden of proof by
pointing to evidence supplied by his adversary. See United
States v. Riley, 363 F.2d 955, 958 (2d Cir. 1966) (explaining
that a defendant may meet his burden of proving an affirmative
defense by pointing to evidence supplied “by the Government
itself”). Of course, a party will rarely introduce evidence
that proves his adversary’s case. But if he does, nothing
prevents the adversary from using that evidence to his benefit.
We applied this principle in United States v. Hicks, 748
F.2d 854, 857 (4th Cir. 1984), where “evidence adduced by the
government” -- but never once mentioned by the defendant --
nevertheless provided a basis for the defendant to assert an
alibi defense. Numerous other cases confirm that a party may
12
rely on its opponent’s evidence to make its own case. See,
e.g., United States v. Hairston, 64 F.3d 491, 495 (9th Cir.
1995) (defendant could assert alibi defense even though evidence
supporting it was introduced by government); United States v.
Ortiz-Rengifo, 832 F.2d 722, 725 (2d Cir. 1987) (government
could rely on evidence supplied by the defendant to carry its
burden of proof); United States v. Webster, 769 F.2d 487, 490
(8th Cir. 1985) (defendant could rely on “‘any’ evidence,
whether ‘defense’ evidence or ‘government’ evidence,” to make
his case); In re Brogna, 589 F.2d 24, 27 (1st Cir. 1978) (the
“government’s own evidence . . . without more” satisfied a
witness’s burden of establishing Fifth Amendment privilege).
The Attorney General offers no reason why this principle
does not apply in the immigration context, and we see none.
Indeed, recent case law suggests that it does indeed apply in
that context. The Third Circuit, for example, has held that
State Department country reports “are probative evidence and
can, by themselves, provide sufficient proof to sustain an
alien’s burden” -- without so much as hinting that the alien
must supply this evidence himself. Zubeda v. Ashcroft, 333 F.3d
463, 477 (3d Cir. 2003). A number of other courts have relied
on documents submitted by the government as evidence helping to
demonstrate an alien’s eligibility for relief. See, e.g., Gomes
v. Gonzales, 473 F.3d 746, 756 (7th Cir. 2007) (granting asylum
13
applicant’s petition for review in part because “the State
Department Reports themselves” helped establish a well-founded
fear of persecution); Chanchavac v. INS, 207 F.3d 584, 592 (9th
Cir. 2000) (noting that evidence introduced by the INS “gives us
further reason to believe [the alien’s] fears are warranted”).
Given that government surveillance can amount to official
restraint, De Leon came under restraint as soon as Agent Huffman
spotted him at milepost nine -- where the BIA found that Agent
Huffman “first saw” him and began following him. The BIA did
not suggest, let alone find, that before arriving at milepost
nine De Leon was under any “constraint emanating from the
government that would otherwise prevent [him] from physically
passing on.” Correa, 901 F.2d at 1172. Before any government
official first observed him, De Leon necessarily enjoyed the
“freedom to go at large and mix with the population”
unconstrained by government surveillance. Pierre, 14 I. & N.
Dec. at 469. He therefore entered free from official restraint. 5
5
The BIA’s citation to Pierre, 14 I. & N. Dec. at 469 --
which parenthetically noted that official restraint “may take
the form of surveillance, unbeknownst to the alien” -- could be
construed as holding that an alien must also prove that no
government official observed him without his knowledge. De Leon
argues that this would impose an insurmountable burden, and that
no alien could hope to qualify for NACARA relief under this
approach. The Attorney General does not disagree. Indeed, the
Attorney General expressly rejects as “incorrect” any contention
that the BIA imposes this “additional burden.” Att’y Gen. Br.
29. The Attorney General suggests that the language from Pierre
(Continued)
14
The BIA remarked that neither Agent Huffman’s report nor De
Leon’s testimony established where De Leon crossed the border or
the distance he travelled before ultimately being apprehended at
milepost nine. Although it is not clear, the BIA may have
relied on the absence of evidence on these points to hold that
De Leon did not enter the country free from official restraint.
The dissent similarly finds importance in the asserted lack of
evidence as to the “circumstances of De Leon’s entry” -- i.e.,
“when and how he entered the United States.” 6
But, as the BIA’s own published precedent establishes, the
“circumstances” that the BIA and the dissent find critical
merely affirms the undisputed proposition that government
surveillance alone -- as opposed to physical apprehension -- can
constitute official restraint. We agree with the Attorney
General that Pierre does not require an alien to meet the
impossible burden of proving that no government official
observed him “unbeknownst to [himself].” The only other
appellate court to address the question, albeit in a case where
the government bore the burden of proof, came to the same
conclusion. See United States v. Castellanos-Garcia, 270 F.3d
773, 776 (9th Cir. 2001).
6
The dissent suggests that De Leon cannot prevail for one
additional reason: his asserted failure to offer credible
evidence as to “whether he was observed by a government
official” at the time of his entry. The BIA, however, did not
deny relief on this ground. Rather, the BIA’s sole rationale
for denying De Leon’s claim was that discussed in text above --
that De Leon had failed to present “clear evidence that he was
ever ‘free from official restraint’ as it is unclear at what
point [he] actually entered the United States, how much time had
passed before he was spotted by Agent Huffman, and how far from
the border he had travelled before being detained.” Of course,
we cannot uphold the BIA’s ruling on a ground never relied on by
the agency. See SEC v. Chenery Corp., 318 U.S. 80, 94 (1943).
15
simply do not bear on the issue of official restraint. In the
case of In re Z-, 20 I. & N. Dec. 707 (BIA 1993), for example,
the BIA concluded that an alien who disembarked illegally in San
Francisco and was apprehended some time later “somewhere in the
vicinity” of the harbor entered free from official restraint.
Id. at 707, 713. As in this case, the alien bore the burden of
proving freedom from official restraint. Id. at 710. And as in
this case, the record did not reflect the distance the alien
travelled, the precise amount of time he spent in the country
before being apprehended, or how he occupied this time. But the
BIA found it sufficient that he “could have exercised” his
freedom to move about the city. Id. at 714 (emphasis added).
Whether he chose to exercise this freedom was “of no
consequence.” Id. 7
The BIA has adhered to this approach in a number of
unpublished decisions affirmed by courts of appeals. See, e.g.,
7
The dissent contends that our reliance on In re Z- is
misplaced. But we rely on In re Z- only to show that the BIA
itself has previously recognized the irrelevance of the specific
factors on which it relied here in denying De Leon relief; i.e.
the absence of evidence of “the point [at which De Leon]
actually entered the United States, how much time had passed
before he was spotted by Agent Huffman, and how far from the
border he travelled before being detained.” The dissent
apparently believes the BIA should have denied De Leon’s claim
on the ground that he failed to establish “a lapse in time
between his unwitnessed entry and his apprehension.” But the
BIA did not deny relief on this ground and so we cannot affirm
the BIA on this basis. See supra n.6.
16
Nyirenda v. INS, 279 F.3d 620, 624-25 (8th Cir. 2002); Cheng v.
INS, 534 F.2d 1018, 1019 (2d Cir. 1976) (per curiam). Some of
these cases arose under a different statutory provision whereby
a finding that the alien entered free from official restraint
rendered the alien deportable -- the outcome the government
sought in those cases. Here, by contrast, a finding that De
Leon entered free from official restraint would qualify him for
cancellation of removal -- an outcome the government opposes.
The BIA cannot apply its official-restraint standard broadly
when broadness favors the government’s position and narrowly
when it does not. If an agency follows “by settled course of
adjudication[] a general policy by which its exercise of
discretion will be governed, an irrational departure from that
policy” constitutes grounds for reversal. INS v. Yueh-Shaio
Yang, 519 U.S. 26, 32 (1996). Indeed, an agency may depart from
its own precedent only if it offers a “reasoned explanation” for
doing so. FCC v. Fox Television Stations, Inc., 556 U.S. 502,
516 (2009). The BIA failed to provide such a “reasoned
explanation” here.
We finally note that every circuit to consider the issue
has concluded that an alien first observed by a government agent
miles (or less) beyond the United States border has entered free
from official restraint -- regardless of whether the party
bearing the burden of proof has offered evidence of the
17
“circumstances” of the alien’s entry. See United States v.
Cruz-Escoto, 476 F.3d 1081, 1085-86 (9th Cir. 2007) (alien first
observed 150 yards beyond the border entered free from official
restraint even where officer “did not see [the alien] cross the
border and could not say how or where [the alien] entered the
United States”); Nyirenda, 279 F.3d at 624 (alien stopped after
driving “out of sight” for two miles in the United States
entered free from official restraint); Castellanos-Garcia, 270
F.3d at 774-76 (alien first seen walking “at least 100 yards
from the border” entered free from official restraint even
though neither party submitted evidence “about [the alien’s]
exact point of entry”); Cheng, 534 F.2d at 1019 (alien first
discovered driving less than a mile beyond the border entered
free from official restraint); United States v. Martin-
Plascencia, 532 F.2d 1316, 1317 (9th Cir. 1976) (alien
apprehended fifty yards beyond the border entered free from
official restraint). 8 We decline to disregard this overwhelming
body of precedent by holding to the contrary.
8
A narrow circuit division has emerged regarding aliens who
cross the border unseen but are detected mere yards away.
Compare United States v. Cruz-Escoto, 476 F.3d 1081, 1085-86
(9th Cir. 2007) (aliens “who evade government observation while
crossing the border are deemed to be free from official
restraint, regardless of the distance they travel between entry
and arrest”) with Yang v. Maugans, 68 F.3d 1540, 1550 (3d Cir.
1995) (“the mere fact that [an alien] may have eluded the gaze
of law enforcement for a brief period of time” after entry “is
(Continued)
18
IV.
For all of these reasons, we grant the petition for review
and remand the case to the BIA to consider De Leon’s application
for NACARA relief in light of the proper legal standard. We
express no opinion as to whether De Leon meets all of the
criteria for NACARA eligibility. If he is eligible for NACARA
relief, such eligibility “in no way limits the considerations
that may guide the Attorney General in exercising [his]
discretion to determine” whether to accord De Leon relief.
Yueh-Shaio Yang, 519 U.S. at 31. The Attorney General retains
his authority to determine whether De Leon should be granted
special rule cancellation of removal.
PETITION GRANTED AND CASE REMANDED
insufficient, in and of itself, to establish freedom from
official restraint”). We need not pick a side in this debate,
however, because neither line of precedent undermines the
conclusion that an alien who rode in a car, undetected, for at
least seventeen miles into the United States entered the country
“free from official restraint.”
19
DUNCAN, Circuit Judge, dissenting:
It is undisputed that De Leon presents no credible evidence
to carry his burden of proving freedom from official restraint
upon entry into the United States as required by NACARA. 8
U.S.C. § 1229a(c)(4); In re G-, 20 I. & N. Dec. 764, 770-71 (BIA
1993). Although the majority recites that fact, it fails to
recognize its analytical significance. To be clear, I am not,
as the majority mistakenly appears to believe, requiring De Leon
to prove a negative--i.e. that he was not under official
restraint prior to being observed by Agent Huffman. I simply
seek to hold him to his statutory burden of presenting some
credible evidence regarding the circumstances of his entry into
the United States. Because he presents none, not even as to the
passage of time, I respectfully dissent.
To establish freedom from official restraint, an applicant
must prove that he was “free[] to go at large and mix with the
population” between the time he entered the United States and
the time he was apprehended. In re Pierre, 14 I. & N. Dec. 467,
469 (BIA 1973). The government acknowledged at oral argument,
that had De Leon been found credible by the Immigration Judge,
his testimony would have established the circumstances of his
entry, and I agree. See Matter of G, 20 I. & N. 764, 777 (BIA
1993).
20
Indeed, as the BIA explained below, the law requires only
that De Leon establish the circumstances of his entry into the
United States by providing some credible evidence regarding when
and how he entered the United States. Joint Appendix 4-5.
Here, because De Leon is not credible, we have evidence only of
his apprehension by Agent Huffman. We know nothing of the
circumstances of De Leon’s entry, including whether he was
observed by a government official. * The absence of evidence is
not evidence of absence. Yet, the majority finds Agent
Huffman’s report sufficient to establish that De Leon
*
In In re Z, 20 I. & N. Dec. 707 (1993), the BIA found both
the circumstances of the applicant's entry into the United
States and the fact that the record established a lapse in time
between his unwitnessed entry and his apprehension relevant in
holding that the applicant carried his burden of proving freedom
from official restraint. Id. at 708, 713-14. Contrary to the
majority's contention, therefore, the BIA quite properly applied
its precedent in holding that De Leon failed to establish
freedom from official restraint because he failed to present any
comparable evidence, or, in fact, any evidence at all to carry
his burden of proof. I would equally properly affirm for that
reason.
I also feel compelled to once point out yet again that the
only thing I would to do is hold De Leon to his statutory burden
of presenting some credible evidence regarding the circumstances
of his entry into the United States. Had De Leon himself been
credible, this would have been enough. The majority strains to
give the impression that the dissent would create some
untethered obligation out of whole cloth, as opposed to
recognizing--as it does not--the burden of proof imposed by law.
Were the majority to point to some legally cognizable evidence
of the circumstances of entry, I would gladly yield. It
proffers none--not the proverbial scintilla. And
mischaracterizing the dissent will not fill that analytical
void.
21
“necessarily enjoyed” freedom from official restraint before
being observed by Agent Huffman at “milepost nine.” Maj. Op.
14. There is no basis whatsoever in the record for this
assumption, particularly when it is drawn in favor of the party
bearing the statutory burden of proof.
Where “there is no clear evidence of the facts
determinative of the entry issue, th[e] case[] ultimately must
be resolved on where the burden of proof lies.” Matter of G-,
20 I. & N. at 777. Here, the adverse credibility ruling means
that we have no evidence regarding De Leon’s entry. By holding
that De Leon nonetheless prevails, the majority necessarily and
without explanation shifts to the government the burden of
proving what happened before De Leon was apprehended. This is
contrary to law.
Because the majority ignores the significance of the
adverse credibility ruling and, as a result, misallocates the
burden of proof, I respectfully dissent.
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