Border Agent Watch Called ‘Official Restraint’

A Guatemalan native who first came to the U.S. in 1988 and who illegally re-entered the U.S. and was observed at “milepost nine” in Arizona 17 miles north of the Mexican border, wins review of a denial of his application for cancellation of removal; the 4^th Circuit remands his case to the BIA to consider whether petitioner was “free from official restraint” when he re-entered the U.S.

The Nicaraguan Adjustment and Central American Relief Act authorizes individuals from certain countries – including Guatemala – to seek discretionary relief from removal under the more lenient standards that predated the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

An applicant for “special rule” cancellation of removal under NACARA must satisfy a number of requirements, only one of which is at issue here: the applicant must prove he was not “apprehended at the time of entry” if he entered the U.S. on any occasion after Dec. 31, 1990. “Entry” into the U.S. requires crossing into U.S. territorial limits, inspection and admission by an immigration officer or actual and intentional evasion of inspection; and freedom from official restraint. This case concerns the meaning of the phrase “freedom from official restraint.”

In May 2010, an immigration judge determined Oscar Angel DeLeon’s eligibility for NACARA relief depended on whether he was apprehended at his “time of entry” when he crossed into the U.S. in July 2003. The IJ found that the border patrol agent who apprehended DeLeon and others in the back of a truck near the U.S.-Mexican border, as DeLeon was returning from an unauthorized trip to Latin America, provided the most credible evidence regarding DeLeon’s return to the U.S. That evidence showed DeLeon was apprehended within 25 miles of the border, which the IJ held qualified as an apprehension at the border or its functional equivalent. The Board of Immigration Appeals affirmed.

DeLeon argues the BIA erred as a matter of law in failing to conclude that he entered the U.S. free from official restraint. He points to the government’s evidence to support his point. A number of courts have relied on documents submitted by the government as evidence helping to demonstrate an alien’s eligibility for relief.

Given that government surveillance can amount to official restraint, DeLeon came under restraint as soon as the border agent spotted him at milepost nine – where the BIA found that the agent “first saw” DeLeon and began following him. Before any government official observed him, DeLeon necessarily enjoyed the freedom to go at large and mix with the population unconstrained by government surveillance. He therefore entered free from official restraint.

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. The BIA has adhered to this approach in a number of unpublished decisions affirmed by courts of appeals. Every circuit to consider the issue has concluded that an alien first observed by a government agent miles or less beyond the U.S. border has entered free from official restraint – regardless of whether the party bearing the burden of proof has offered evidence of the circumstances of the alien’s entry.

We grant DeLeon’s petition for review and remand for the BIA to consider his application for NACARA relief in light of the proper legal standard.

Petition granted and case remanded.

Dissent

Duncan, J.: The majority finds the agent’s report sufficient to establish that DeLeon “necessarily enjoyed” freedom from official restraint before being observed by the agent at “milepost nine.” 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. Here, the adverse credibility ruling means we have iiinoiii evidence regarding DeLeon’s entry. By holding that DeLeon nonetheless prevails, the majority necessarily and without explanation shifts to the government the burden of proving what happened before DeLeon was apprehended. This is contrary to law.

I respectfully dissent.

DeLeon v. Holder (Motz) No. 13-1651, July 30, 2014; On Petition for Review; Cherylle C. Corpuz for petitioner; Jeffery R. Leist, USDOJ, for respondent. VLW 014-2-146, 22 pp.