Lopez-Esparza v. Holder
| Decision Date | 23 October 2014 |
| Docket Number | No. 13–3376.,13–3376. |
| Citation | 770 F.3d 606 |
| Parties | Juan E. LOPEZ–ESPARZA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Isuf Kola, Kola & Associates, Ltd., Glen Ellyn, for Petitioner.
Sunah Lee, Oil, Department of Justice, Washington, DC, for Respondent.
Before POSNER, FLAUM, and SYKES, Circuit Judges.
Juan Lopez–Esparza, who asks us to reverse the denial of his petition for cancellation of removal, entered the United States illegally in 1999 from Mexico; he is a Mexican citizen, though he has resided in the United States since his 1999 entry continuously except for several visits to Mexico between 2000 and 2008. In 2010 he was stopped for what the parties call a “minor traffic offense”; it was driving without a license, but that would be a minor offense if for example he had a license but had left it at home—we don't know. The stop led to the discovery that he was an illegal alien, and the institution of removal proceedings.
He conceded that he was removable but applied for cancellation of removal on the ground that he “has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.” 8 U.S.C. § 1229b(b)(1)(A). The word “continuous” is qualified in the statute; it requires only that the petitioner for cancellation of removal not have “departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.” § 1229b(d)(2). The petitioner has the burden of proving his entitlement to cancellation of removal under these provisions by a preponderance of the evidence. See, e.g., 8 C.F.R. § 1240.8(d). Furthermore, the continuous period of U.S. residence terminates automatically when the alien receives a notice requiring him to appear for a removal hearing before an immigration judge because he is suspected of being an illegal immigrant. 8 U.S.C. § 1229b(d)(1)(A).
At his hearing before an immigration judge, Lopez–Esparza testified that he had come to the United States in May 1999, which was more than ten years before he received his notice to appear in August 2010 and applied for cancellation of removal in November 2010. The immigration judge credited Lopez–Esparza's testimony about when he'd come to the United States, and so the only issue is the continuity of his residence here.
He testified that he'd taken three trips to Mexico during his time in the United States, the first lasting from late in 2001 to early in 2002, the second in late 2002, and the third early in 2008. The dates of departure and return that he gave would if true have established that his total time in Mexico between 1999 and the present was only 114 days, with none of the trips having lasted longer than 90 days. The immigration judge, however, while stating that he did “not believe that [Lopez–Esparza] may necessarily [have] be[en] testifying falsely under oath,” denied cancellation of removal on the ground that Lopez–Esparza “simply cannot recall dates with the necessary specificity to qualify him for cancellation of removal.” The Board of Immigration Appeals affirmed the immigration judge in a perfunctory order.
It's certainly true that Lopez–Esparza could not “recall dates” well. He could not remember whether he'd returned to Mexico for the first time on the 18th, 20th, or 24th of December 2001, whether his subsequent eight-day trip to Tijuana had taken place late in 2002 or early in 2003 and lasted four to five days or eight days, and whether his 2008 trip had begun in January, March, or February and lasted a little more than a month or, more precisely, five and a half weeks. The only document submitted in the proceeding was his Mexican marriage certificate, dated February 1, 2001. The immigration judge thought the date contradicted Lopez–Esparza's testimony that he had taken only three trips to Mexico since coming to the United States. But he may simply have gotten the year of his wedding wrong. His first return to Mexico, which he said took place in December 2001, may actually have taken place in December 2000, in which event he presumably had remained in Mexico from then until his wedding in February 2001, two months later, rather than making a separate trip then to get married. He testified that the trip he thought he'd begun in December 2001 was for his wedding; since the wedding had actually taken place in February of that year, his departure from the United States had probably taken place at the end of the preceding year, 2000.
He testified that he'd not left the United States for a total of more than 90 days, though apparently he was referring to his longest trip rather than aggregating the time of all three trips. The government acknowledges in its brief that “there is no indication that the immigration judge did not believe Lopez[-Esparza]'s statement” that he hadn't left the country for more than 90 days at a time. The best guess is that he spent a total of 137 days outside the United States—71 days on the first trip, 8 days on the second, and 58 days on the third. Other possibilities consistent with his testimony for the total time he spent in Mexico after coming to the United States are 120 days and 158 days. All three estimates are under the 180–day cutoff.
The essential point, overlooked by the immigration judge, is that the presence of uncertainty about the exact start and end dates of a trip need not create uncertainty about whether the trip exceeded some cutoff. In this case the full range of uncertainty is below the 180–day limit.
Lopez–Esparza's testimony was confused and confusing, but the issue should have been whether he had managed to establish by a preponderance of the evidence that he...
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