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.
2

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).
3

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.
4

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 
5

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 
6

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 
7

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 Statescitizen 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.
8

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 
9

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 bordersearch 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 
10

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.
11

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.
12

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 
13

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 
14

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)
15

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).
16

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.
17

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 
18

“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. MartinPlascencia, 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)
19

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.”
20

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).
21

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.
22

“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.