De Leon v. Holder

• Decision Date: 30 July 2014
• Docket Number: No. 13–1651.,13–1651.
• Citation: 761 F.3d 336
• Parties: Oscar Angel DE LEON, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

761 F.3d 336

Oscar Angel DE LEON, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 13–1651.

United States Court of Appeals,Fourth Circuit.

Argued: May 14, 2014.

Decided: July 30, 2014.

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.

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.

DIANA GRIBBON MOTZ, Circuit Judge:

Oscar Angel De Leon, a Guatemalan national residing in the United States, petitionsfor 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).

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.¹In 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 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 surveillanceby 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 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 also8 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 be determined by the Attorney General. Rodriguez, 451 F.3d at 62 (quoting INS v. St. Cyr, 533 U.S. 289, 307–08, 121 S.Ct. 2271, 150 L.Ed.2d 347 (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 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 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 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...